the ppesence of this Book
thej.m. kelly
has Been made possiBle
thpouqh the qeneposity
Stephen B. Roman
From the Library of Daniel Binchy
GAI
INSTITVTIONES
OR
INSTITUTES OF ROMAN LAW
BY GAIUS
WITH A TRANSLATION AND COMMENTARY
BY THE LATE
EDWARD POSTE, M.A.
FOURTH EDITION, REVISED AND ENLARGED BY
E. A. WHITTUCK, M.A., B.C.L.
WITH AN HISTORICAL INTRODUCTION BY
A. H. J. GREENIDGE, D.Lrrr.
OXFORD
AT THE CLARENDON PRESS
MDCCCCIV
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
LONDON, EDINBURGH
NEW YORK
PREFACE
THE death of the author of this Commentary and Translation
has taken from us one who in the intervals allowed him by
his official duties gave himself with single-minded devotion to
the acquisition and furtherance of knowledge. ' Omnium, quos
cognovi, doctissimus ' were the words in which Mr. Poste's great
erudition was commemorated by the Vice-Chancellor of the
University, the distinguished head of the distinguished College
of which Mr. Poste was almost the senior Fellow ; and certainly
no one can read this Commentary without being impressed
by the writer's philosophic spirit and extensive learning. It
is especially remarkable that a scholar, who was never engaged
in the teaching or practice of law, should have produced
a legal textbook, which perhaps more than any other makes
intelligible to English students the teaching of the great German
masters of Roman jurisprudence and at the same time never fails
.to be interesting by reason of its own force and individuality.
In re-editing this well-known work, at the request of Mr. Poste's
executors and of the Delegates of the Clarendon Press, my
endeavour has been to preserve as far as possible the character
which Mr. Poste himself gave it, while making such alterations
as seemed to be required at the present time. As Mr. Poste
never revised his Translation and Commentary with any com-
pleteness since they were first published, their revision for this
edition has been a more considerable undertaking than would
otherwise have been the case. ' It should be noticed that the
part of the Commentary relating to analytic jurisprudence has
been much curtailed in the present edition. This has been done
by the advice of persons engaged in the teaching of Roman
law at Oxford, who are of opinion that the insertion of so much
matter bearing on the general theory of law has rendered the
Commentary unnecessarily difficult to students and that the
subject is one better left to independent treatises. The omission
of the Preliminary Definitions on this account has made it
possible to introduce into the book an Historical Introduction
to Gaius, which has been written by Dr. Greenidge, who is well
ii PREFACE
known for his writings on Roman constitutional history, and for
his special Treatises on ' Infamia ' and on ' The Legal Procedure
of Cicero's Time.'
The text of Gaius adopted is that of the last edition of Krueger
and Studemund, which its German proprietors have again most
kindly allowed us to use. In this text the numerous lacunae
are only filled up, where from passages in the Institutes or other
sources the missing words may be inferred, at least with a very
high degree of probability. Some other conjectural readings,
more or less followed in the Translation, will be found in the
Appendix. It is to be hoped that in some future edition of
this book a Critical Apparatus may be supplied by a competent
hand. In the meantime the student should more especially refer
to the notes on the text appended to Krueger's and Studemund's
Gaius. He may also consult with advantage the notes to the
late Professor Muirhead's edition of Gaius, though the valuable
textual criticism to be found there requires revision in the light
of more recent research.
In conclusion, I have to express my obligations to my old
friend and pupil Mr. Ledlie, the translator of Sohm's Institutes,
for many helpful suggestions. Another old friend and pupil,
Dr. Potts, has also rendered me valuable aid, especially in the
preparation of the Index and of the Chronological Table. My
friends Dr. Schuster and Dr. Greenidge have given me useful
information on several points about which I have consulted
them.
E. A. WHITTUCK.
CLAVERTON MANOR, BATH,
October 17, 1904.
CONTENTS
HISTORICAL INTRODUCTION ....
BOOK I
STATUS OR UNEQUAL RIGHTS [DE PERSONIS]
PAGE
ix-lv
SECTION
1-7
9-12
13-47
48-50
51-54
55-107
108-1156
116-123
124-141
142-196
197-200
SOURCES OR ORIGINS of law, or various ORGANS of
legislation. CIVIL law, and NATURAL law . . . 1-13
DIVISIONS OF LAW 13-18
The subjects of the Civil Code are
(1) UNEQUAL RIGHTS (PERSONAE, Book I) ;
(2) EQUAL RIGHTS (RES, Books II and III) ;
(3) PROCEDURE (ACTIONES, Book IV).
STATUS or INEQUALITY of rights divides the members
of society into nine classes : the Freeborn, the Freedman,
the Slave ; the Citizen, the Latin, the Alien ; the Father of
the household, the Son of the household, the Bondsman . 18-20
FREEDMEN .... .... 20-35
Dependent and Independent Persons 35
SLAVES . it 36-39
PATERNAL POWER, the modes in which it originates . 39-66
MARITAL POWER, the modes in which it originates . . 66-73
BONDAGE, the mode in which it originates .... 74-78
Modes in which PATERNAL POWER, MARITAL POWER,
and BONDAGE are terminated 78-87
INEQUALITIES among those who are INDEPENDENT
(Fathers of their household).
GUARDIANSHIP, classes and modes in which it originates
and terminates 87-113
CURATORS . 114-116
IV
CONTENTS
SECTION
BOOK II
EQUAL RIGHTS [DE REBVS].
PAGE
EQUAL EIGHTS are
(1) SINGLE (RES SINGVLAE);
(2) COLLECTIVE (IVRVM VNIVERSITATES).
Single rights are
(1) REAL (IVS IN REM);
(2) PERSONAL (IVS IN PERSONAM).
Real rights are (not to mention PRIMORDIAL rights)
(1) UNLIMITED (DOMINIVM or OWNERSHIP) ;
(2) LIMITED (SERVITVS or SERVITUDE).
SINGLE RIGHTS (RES SINGVLAE), and in the first place
the REAL RIGHTS of OWNERSHIP and SERVITUDE
(one branch of RES SINGVLAE).
Divisions of RES 122-128
TITLES or facts originative of REAL rights, whether
OWNERSHIP OR SERVITUDE . . . 128-163, 164-168
Ownership without power of alienation, and power of alienation
without ownership 163, 168
Alienation by WARDS 169-170
INSTRUMENTS of Acquisition of Real rights . . . 170-175
COLLECTIVE RIGHTS [IVRVM VNIVERSITATES].
The TITLES by which a person is invested with Collective
rights, in other words, the TITLES of UNIVERSAL
SUCCESSION, are five, Testamentary disposition, Intestacy,
Insolvency, Adrogation, and Manus or Marital power . .175
101-190 WILLS . 176-226
191-245 LEGACIES. Legacies are Titles to RES SINGVLAE, but
are introduced in this place as being accessory to WILLS . 226-246
FIDUCIARY BEQUESTS.
246-259 COLLECTIVE FIDUCIARY BEQUESTS .... 246-258
260-289 SINGLE FIDUCIARY BEQUESTS, though examples of
RES SINGVLAE, are introduced in this place as being
accessory to Wills 258-268
1-14
14a-79
62-64
80-85
86-96
97-100
BOOK III
INTESTACY or title by DESCENT.
1-38 ORDER of Intestate Succession .
89-76 Successions to FREEDMEN, testate and intestate .
269-283
283-300
CONTENTS v
SECTION PAGE
77-87 Successions by INSOLVENCY, ADEOGATION, MARITAL
POWER, transfer of Inheritance 301-315
PERSONAL RIGHTS, or OBLIGATIONS [the other branch
of RES SINGVLAE], and their TITLES.
88-162 Obligations founded on CONTRACT 315-387
163-167 INSTRUMENTS of acquiring Obligation .... 387-389
168-181 EXTINCTION of Obligation . . 389-401
182-225 Obligations founded on DELICT 402-431
ADDENDUM . . - 432-441
BOOK IV
PROCEDURE [DE ACTIONIBVS].
1-9 CLASSIFICATION of Actions
10-29 STATUTE-PROCESS or ANCIENT method of Procedure .
30-38 FORMULARY Procedure, FICTION
39-68 Component parts of the FORMULA
69-81 ACTIONS on account of the Contracts and Delicts of others .
82-87 REPRESENTATION of the principal parties to an action .
88-102 SECURITIES to be given by the parties to an action
103-109 STATUTORY actions.
NON-STATUTORY actions, or actions founded on the executive
authority of the Praetor .......
110-113 PERPETUAL actions, or actions which can be instituted at
any date from their nativity (in later times within twenty
or thirty years from their nativity), and TEMPORARY
actions, or actions that must be instituted within a certain
date (usually a year) from their nativity. Actions TRANS-
MISSIBLE or NOT-TRANSMISSIBLE to the heirs of the
principal parties
114 Title of defendant subsequent to Li'tis contestatio
115-137 NEGATION and EXCEPTION, or NULLITY, NULLIFI-
CATION, COLLISION, of rights
138-170 INTERDICT and POSSESSION and DETENTION .
171-187 VEXATIOUS litigation. Actions which carry infamy. Summons
and security for reappearance
APPENDIX
442-454
454-470
470-480
480-515
515-524
524-527
527-534
534-544
INDEX
544-554
554-555
555-581
582-620
620-623
629
633
EXPLANATION OF ABBREVIATIONS
Inst. Institutes of Justinian.
Dig. Digest or Pandects of Justinian.
Cod. Code of Justinian.
Nov. Novellae Constitutiones or Novels of Justinian.
The meaning of the numbers that follow these abbreviations will be obvious
to any one who opens a volume of the Corpus Juris.
Pr. stands for principio, meaning, in the first paragraph of a title of the
Institutes, or of a fragment of a title of the Digest, or of a ' lex ' of a title
of the Code.
The Commentaries of Gaius are referred to by numbers indicating the book
and the paragraph: e.g. 2 § 5, indicates the 5th paragraph of Book 2.
When the reference is to another paragraph in the same book, the book
is omitted.
When Ulpian or Paulus are quoted, the works referred to are the Ulpiani
Fragmenta or Excerpta ex Ulpiani Libro singulari Regularum, and the
Sententiae Receptae of Paulus.
Fragm. Vat. Fragmenta Juris Romani Vaticana.
(For the Jus antejustinianum see Huschke's or Krueger's Collections of
ante-Justinian legal writings.)
When Savigny, Vangerow, Keller, Bethmann-Hollweg, Ihering, Kuntze,
Windscheid, Dernburg, Lenel, Sohm, Muirhead, and Robyare simply cited,
the references are to Savigny, System des heutigen romischen Rechts ;
Vangerow, Lehrbuch der Pandekten ; Keller, Der rSmische Civilprocess
und die Actionen ; Bethmann-Hollweg, Der romische Civilprozess ;
Ihering, Geist des rOmischen Rechts auf den verschiedenen Stufen seiner
Entwicklung ; Kuntze, Institutionen und Geschichte des romischen
Rechts ; Windscheid, Lehrbuch des Pandekten-Rechts ; Dernburg, Pan-
dekten ; Lenel, Das Edictum Perpetuum, ein Versuch zu dessen Wieder-
herstellung; Sohm, The Institutes — A Text-book of the History and
System of Roman Private Law (translated by J. C. Ledlie), 2nd ed. ;
Muirhead, Historical Introduction to the Private Law of Rome, 2nd ed. ;
Roby, Roman Private Law in the times of Cicero and of the Antomnes.
CHRONOLOGICAL TABLE
B.C.
753 Traditional Date of Foundation of
Home.
578-535 Servius Tullius. Division into
thirty Tribes. Military Organi-
zation of Centuries. Institution
of Census.
509 Office of Consuls instituted.
494 First Secession of Plebs. Institu-
tion of Tribuni Plebis.
451-448 Law of the Twelve Tables.
449 Second Secession of Plebs —
Leges Valeriae Horatiae.
445 Lex Canuleia, legalizing marriages
between Patricians and Ple-
beians.
443 Censorship established.
366 Office of Praetor established.
326 Lex Poetelia about this time.
304 Cnaeus Flavius publishes forms
of actions and calendar of dies
fasti and nefasti.
300 Lex Ogulnia, admitting Plebeians
to College of Pontiffs.
287 Last Secession of Plebs —
Lex Hortensia.
Lex Aquilia.
280 Tiberius Coruncanius (subse-
quently first Plebeian Pontifex
Maximus), Consul.
242 First appointment of a Praetor
Peregrinus about this time.
204 Lex Cincia.
198 Sextus Aelius Paetus (earliest
commentator on the Twelve
Tables), Consul.
170-150 Lex Aebutia probably enacted
within this period.
169 Lex Voconia.
105 P. Butilius Rufus, Consul.
95 Q. Mucius Scaevola (pontifex),
Consul.
92 Sulla, Dictator.
89 End of Social War.
Leges Corneliae.
66 C. Aquilius Gallus, Praetor.
63 Cicero, Consul.
59 Julius Caesar, Consul.
51 Servius Sulpicius, Consul.
49 Accession of Julius Caesar to
supreme power.
Lex Rubria.
45 Lex Julia municipalis.
44 Assassination of Caesar.
40 Lex Falcidia.
27 Caesar Octavianus receives title of
Augustus (first Constitution of
the Principate).
23 Second and final Constitution of the
Principate.
27-14 A. D. Principate of Augustus.
M. Antistius Labeo.
C. Ateius Capito.
18 Lex Julia de adulteriis et de
maritandis ordinibus.
A. D.
4 Lex Aelia Sentia.
6 Lex Julia de vicesima hereditatium.
9 Lex Papia Poppaea.
14-37 Tiberius, Emp.
Masurius Sabinus.
Proculus.
19 Date to which Lex Junia (Norbana)
is generally ascribed.
30 C. Cassius Longinus, Consul.
37-41 Caligula, Emp.
41-54 Claudius, Emp. —
Lex Claudia.
S. C. Claudianum.
46 S. C. Vellaeanum or Velleianum.
54-68 Nero, Emp.—
S. C. Neronianum.
62 S. C. Trebellianum.
68 Galba, Emp.
Vitellius, Emp.
68-79 Vespasian, Emp.
70 S. C. Pegasianum.
79-81 Titus, Emp.
81-96 Domitian, Emp.
96-98 Nerva, Emp.
98-117 Trajan, Emp.
117-138 Hadrian, Emp.
Edictum Perpetuum of Salvius
Julianus.
138-161 Antoninus Pius, Emp.
First and part of second book
of Gaius probably written
at this time.
161-180 M. Aurelius Antoninus, Emp.
Institutes of Gaius probably
completed under this Em-
peror.
178 S. C. Orfitianum.
180-193 Commodus, Emp.
193 Pertinax and Julianus successively
Emperors.
193-211 Septimius Severus, Emp.
204 Papinian, praefectus praetorio.
Vlll
CHRONOLOGICAL TABLE
A. D.
211-217 Caracalla, Emp.—
Papinian killed.
Edict of Caracalla — extending
citizenship.
217-218 Macrinus, Emp.
218-222 Elagabalus, Emp.
222-235 Severus Alexander, Emp.
222 Ulpian, praefectus praetorio.
228 Ulpian killed.
235-238 Maximinus, Emp.
238 Gordianus I and II, Emp.
238-244 Gordianus III, Emp.
244-249 Philippus, Emp.
249-251 Decius, Emp.
251-253 Trebonianus Gallus, Emp.
253 Aemilianus, Emp.
253-260 Valerian and Gallienus, joint
Emperors.
260-268 Gallienus, sole Emperor.
268-270 Claudius II, Emp.
270-275 Aurelian, Emp.
275-276 Tacitus, Emp.
276 Florianus, Emp.
276-282 Probus, Emp.
282-283 Cams, Emp.
283-284 Carinus and Numerianus,
joint Emperors.
285 Carinus, sole Emperor.
285-286 Diocletian, sole Emperor.
A. D.
286-305 Diocletian and Maximian,
joint Emperors.
305-306 Constantius I and Galerius,
joint Emperors.
306 Constantius I, Galerius, and Con-
stantino the Great, joint Em-
perors.
307-311 Galerius, Constantine the
Great, and Licinius, joint Em-
perors.
311-323 Constantine the Great and
Licinius, joint Emperors.
323-337 Constantine the Great, sole
Emperor.
330 Constantinople, the seat of govern-
ment.
337-340 Constantius II, Constan-
tine II, and Constans I, joint
Emperors.
340-350 Constantius II and Constans I,
joint Emperors.
350-361 Constantius II, sole Emperor.
361-363 Julian, Emperor.
363-364 Jovian, Emperor.
364 Valentinian I and Valens, joint
Emperors. They divided the
Empire into the Western and
Eastern.
A.D. WESTERN EMPIRE. A, D. EASTERN EMPIRE.
364-367 Valentinian I, Emp. 364-378 Valens, Emp.
367-375 Valentin ian I and Gratian, Emp. 378-392 Theodosius I, Emp.
375-383 Gratian and Valentinian II, Emp.
383-392 Valentinian II, sole Emperor.
392-395 Theodosius I, Emperor of East and West.
395-423 Honorius, Emp. 395-408 Arcadius, Emp.
408-423 Theodosius II, Emp.
423-425 Theodosius II, Emperor of East and West.
425-455 Valentinian III, Emp.
426 Law of Citations.
439 Codex Theodosianus.
455 Petronius Maximus, Emp.
Sack of Rome by the Vandals.
455-456 Avitus, Emp.
457-461 Major ian, Emp.
461-467 Government practically in
hands of the barbarian Ricimer.
467-472 Anthemius, Emp.
472 Olybrius, Emp.
472-475 Julius Nepos, Emp.
475-476 Romulus Augustulus, Emp.
End of Western Empire.
500 Lex Romana Burgundionum.
506 Lex Romana Visigothorum, or
Breviarium Alarici, containing
Epitome of Gaius.
511-515 Edictum Theodorici (Lex
Romana Ostrogothorum).
425-450 Theodosius II, Emp.
450-457 Marcian, Emp.
457-474 Leo I, Emp.
474 Leo II, Emp.
474-491 Zeno, Emp.
491-518 Anastasius I, Emp.
518-527 Justin, Emp.
527-565 Justinian, Emp.
Tribonian.
528 Code ordered.
529 Code published.
530 Digest ordered.
533 Digest and Institutes published.
534 Revised edition of Code published.
HISTORICAL INTRODUCTION
IN order to justify the character of this introductory essay it is
necessary to say a few words about the intention with which it is
written. The reader must regard it mainly in the light of an intro-
duction to the Institutes of Gaius, not in the light of a disinterested
sketch of the history of Eoman Law. Had it been intended to have
the latter character, both some of its omissions and some of its
inclusions would be wholly unjustifiable. The most signal of the
omissions is the neglect to give an adequate treatment to the stage of
Roman Law which yields to no other in importance — the stage at
which it passes from the religious to the secular sphere, from Fas to
Jus. One of the chief questions which is, or should be, agitating
students of Koman Law at the present day, is that of the period at
which this transition was effected. For, if it is true that Roman Law
retained its priestly character and its religious sanctions to a late
period of the Republic l, then the traditional history of the Twelve
Tables is an improbability, and the account given by Cicero and
other writers of the legislation and procedure of the Monarchy and
early Republic is an anachronism. The student of Gaius, however,
is not very intimately concerned with this far-reaching historical
question ; and I have been content to state my general adherence to
the traditional view without attempting to justify it by evidence.
Amongst subjects included in this sketch, which have little direct
bearing on the histoiy of Roman Law, I may mention the descriptions
of the structure of the different Comitia at Rome and the account of
the manner in which the powers of the Princeps were conferred.
From the point of view of the general history of the civil and
criminal law in a State it is not of much importance to determine the
particular mode in which a legislative assembly is constituted, or the
precise manner in which a sovereign (whether nominal or real) is
invested with his authority. But these historical questions do to
some extent underlie subjects which are treated by Gaius ; and, as it
was not found convenient to deal with them at any great length in
the commentary, a place had to be found for them in this intro-
duction.
1 This thesis has been vigorously maintained by Lambert in his work
Lafonction du droit civil compare (1903).
WHITTUCk D
x HISTORICAL INTRODUCTION
§ 1. The Unification and Extension of Roman Law.
The history of Eoman Law begins for us with the traditions that
have been preserved concerning the Koman Monarchy. The exist-
ence of a Monarchy such as that described for us by annalists like
Livy and Dionysius, implies the existence of a consolidated State,
with a central legislative and executive power and a tolerably
uniform system of law. In the Monarchy, however, and even in the
early Eepublic it seems that the system of law was not marked by
perfect uniformity, since the two classes of Patricians and Plebeians,
which made up the Eoman State, appear to have been distinguished,
not only by the possession of different political privileges, but also by
the possession of different systems of customary law '. It is even
possible that a further divergence of practice may have existed in
the most primitive society, or societies, out of which the City and
Monarchy of Eome developed — that a considerable amount of
autonomy in legal relations may have existed in the Clans (Gentes)
and Villages (Vici), out of which the earliest Eome was formed.
The history of Eoman law, from its beginning to its close, would
thus be marked by a process of gradually increasing unification.
First the customs of the Clans were merged in the customs of a
State ; but this State consisted of two classes, Patricians and
Plebeians ; and each of these classes seems to have had a customary
law of its own. Then an attempt was made to create a uniform
system ; and this uniformity was probably secured by making
patrician law approximate as closely as possible to plebeian — the
law of the few to the law of the many. A further advance was
made when Eome had become the mistress of Italy. Italian
customs were made ultimately to conform to those of the leading
State, and the free cities of Italy became the municipalities of Eome.
Lastly, Eome had created an Empire. For a very long period she
adopted the wise and cautious policy of recognizing, as far as possible,
the local and tribal law of the cities and peoples under her control.
The recognition of this local or tribal law was not, however, merely
a symptom of the favourite Eoman principle of non-interference. It
was also a sign that the privileges of Eomans and Italians were not
possessed by provincials ; for the conferment of Eoman citizenship,
or even of Latin rights, necessarily carried with it the use of the forms
of Eoman Private Law 2. Hence, when a time came at which Eome
was willing to raise States or individuals in the Provinces to a level
1 See p. xix.
2 The Latins possessed commercium and some of them conubium. Full citizen-
ship would also be possessed by a considerable class in Latin towns, i. e. by all
who, through holding a magistracy, had become Roman citizens.
EXTENSION OF ROMAN LAW xi
with her own citizens, the law of Eome came to take the place of the
territorial or tribal law of these political units. The process of a
thorough imperial unification by means of a common system of
Eoman Private Law had begun.
§ 2. The Epochs in this process of Unification and
Extension.
The dates of the three epochs which we have touched on can only
be vaguely indicated. We have no knowledge of the year, or even
of the century, when the smaller political units, out of which Eome
was formed, became so thoroughly marshalled under the rule of a
common government that the customs of the Clans were made to
conform to the principles laid down and enforced by a single superior
authority. For the second epoch — the period, that is, at which an
attempt was made to secure a uniform system of law which would
be binding equally on Patricians and Plebeians — tradition does
supply a date, one, however, that has more than once been doubted
by modern writers on Eoman History and Law1. This traditional
date is comprised in the years 451-448 B.C., years which the Eomans
believed to mark the creation of the Decemviral Commission and the
publication of the Law of the Twelve Tables. The third tendency —
that of the unification of Eome with Italy, — although it had begun to
be felt in isolated cases from a very early period of Eoman History,
may be said to have received its final impulse at the close of the great
war for Italian freedom, generally known as the Social war, in 89
B. c. The last epoch — that of imperial unification — may be said to
have been ushered in by the accession of Caesar to supreme power in
49 B. c. It had not been closed even by the time of Gaius, about the
middle of the second century A. D. ; for, even at that late period
the Eastern part of the Empire still abode by Eastern forms of law 2.
It may even be questioned whether the Edict of Caracalla, which
is believed to have extended Eoman citizenship to all the free
inhabitants of that portion of the world that was ruled by Eome,
1 Pais, in his Storia di Roma, has stated the view that the Decemviral Legisla-
tion has been antedated by about a century and a half. He brings it down to
the close of the fourth century B.C. He believes that Appius Claudius, the
Decemvir, is a duplicate of Appius Claudius, the censor of 312 B.C., and that
the story of a publication by the Decemvirs is a duplicate of the story of the
revelation of the forms of Law by Cn. Flavins in 304 B.C. Lamb§rt has gone
still further in a view expressed in three works (La question de Tauthenticite des
XII Tables et les Annales Maximi ; La function du droit civil compare; L'histoire
traditionnelle des XII Tables). He thinks that the Twelve Tables, as a code,
originated with Sextus Aelius Paetus, consul in 198 B.C., whom tradition
regards as their earliest commentator, although he admits that there may have
been successive partial compilations before this date.
2 Mitteis, Reichsrecht und Volksrecht.
ba
xii HISTORICAL INTRODUCTION
between the years 212 and 217 A.D., really eliminated all the local
varieties of customary law. Local customs tend to die hard, and it
was never in the spirit of the Koman Empire to suppress them. The
legal unity of the Empire was always more strongly marked in the
matter of Procedure than in the matter of Substantive Law. The
processes of the Courts were the same for every Province at a time
when the greatest varieties of customary law were recognized by •
these courts.
§ 3. Stages of Roman Legal History — The Clan and the
Family — Evolution of individual rights.
We may now attempt to treat in greater detail the stages of Eoman
Legal History which we have outlined. The earliest stage — that
marked by the independent or almost independent life of the Clan
or Gens — is one for which, by the nature of the case, no definite
historical evidence exists. The reality of such a life is merely an
inference drawn from the characteristics of the Gens as it appears
before us in the historical period. These characteristics seem to
prove that the Gens is not a really primitive institution, but a late
and advanced stage in the social development of the Latin races ; but,
on the other hand, they may show that it was in many respects a
more primitive unit than the State ; that is, that it exercised rights
and duties which were ultimately exercised by the State. No
political society worthy of the name can deal with Clans as the
subjects of rights ; it can deal only with Families or Individuals.
Hence, if the Roman Gens ever lived a strong corporate life, the
authority of the Roman State must in those days have been weak.
The organization of the Gens was based on the patriarchal idea in
its extreme form ; that is, on the conception that relationship is only
binding when it can be traced through the male line. And this is
the fact which seems to prove that the Gens marks a late and
mature stage in the development of Latin societies ; for the patri-
archal idea is not one that is readily grasped by the mind of primitive
man. Yet, late as the Gens is when considered in reference to the
prehistoric development of the Latin race, it perhaps possessed, before
the veiy dawn of history, a unity and power of its own, of which
but pale reflections survive in the historical period. In historical
times the only test of unity was the common name borne by the
Gentiles x ; the chief signs of corporate action were their guardianship
of the insane and their reversionary right of guardianship over
women and children 2 — powers which the Gentiles must have
1 Cic. Top. 6. 29 ' Gentiles sunt inter se, qui eodem nomine sunt.'
2 [Cic.] ad Her. i. 13. 23 ; Cic. pro Domo, 13. 35 ; Gaius, i. 157, ii. 47.
EVOLUTION OF INDIVIDUAL RIGHTS xiii
exercised by delegating their authority to a personal representative.
The further right which they possessed in later times, of succeeding
to intestate inheritances in the last resort l, was perhaps a right
possessed by individual members of the corporation rather than by
the corporation itself. But a corporate activity far greater than this
has been suspected for earlier times. There is indirect evidence that
all Private Land (Ager Privatus) was at one time owned by the
Gentes, not by families or individuals 2, and the view that the
primitive Koman Senate was in some way representative of the
Gentes is in accordance with the belief of Eoman antiquity 8. The
fact that the primitive Roman State was in many ways conditioned
by its clan organization seems to be certain. As the State grew
stronger, it substituted the Family for the Clan. Between the two
there is only a difference of degree. The Family (Familia) is the
aggregate of the members of a household under a common head, the
Paterfamilias ; whereas the Gens is the aggregate of all individuals
who bear a common name and who, therefore, if their ancestry
could be traced in the male line through all its stages, would be
found to be the descendants of some ultimate common ancestor.
But the Familia is a far smaller, and therefore a far less powerful,
unit than the Gens. It cannot so effectively dominate the State or
impede its activities4. Again, the heads of families are many in
number ; the heads of the Gentes (who must have existed at the
time when the Gens was the important unit) were necessarily few.
The State which deals with families deals with a multitude of
individuals, not with an oligarchy representing the interests of a
number of corporations. The conception of individual rights, in
their modern sense, was, it is true, never fully recognized in Roman
Private Law. It was impeded by the Patria Potestas — the life-long
power of the father over the son. But much was ultimately done to
lessen the rigour of this patriarchal rule ; and the principles of
Roman Law were finally extended to races which knew nothing
of the Patria Potestas. This law ultimately gave the most perfect
expression hitherto witnessed by the Wbrld of rights which were
both universal and individual. The existence of the Empire gave
Rome the power, possessed in as high a degree by no other State, of
dealing with the individual on universal lines, because she was not
hampered by the barriers between man and man thrown up by
separate national institutions.
1 Ulpian in CoUatio, 16. 4. 2 ; cf. Gaius, iii. 17.
2 Mommsen, Staatsr. iii, p. 23 foil.
3 Cic. de Hep. ii. 20. 35 ; Liv. i. 35.
* See Daily News, Sept. 5, 1901 (< The Genius of Rome ').
xiv HISTORICAL INTRODUCTION
§ 4. Early Religious Law (Fas) — The Leges Regiae — The
Secularization of Law.
A process, which runs parallel with that which we have just de-
scribed, is the process by which Eoman Law came to be secularized ;
the process, that is, by which human were gradually substituted for
divine sanctions. The customary law of a primitive society is either
identical with, or developed from, some form of belief which implies
the omnipresence of the gods and their detailed interest and activity
in human affairs. In primitive Eome the pleading (actio) of the
litigant in a civil suit is a religious chant, every word and cadence
of which must be learnt from the priest ; the wager (sacramentum),
by which the process is stated, is a gift to a temple, and is probably
conceived as an atonement for the involuntary perjury of the man
who loses his case 1 ; the penalties of the criminal law are means of
expiating the anger of the gods, the severest form of atonement being
the sacrifice of the sinner on the altar of the deity whom he has
offended 2. Eome in the historical period still preserves many traces
of these beliefs of her infancy. They are found in the respect for
the Auspices, in the conservatism which maintained the cumbrous
forms of the old pleadings (actiones) and the custody of these forms
by the Pontifical College ; in the varied methods by which crime or
sin is punished, some offences being reserved wholly for the secular
courts, others being visited by the judgments of the Pontifical
College, others again being subject to the milder chastisement of the
Censor before he performs the religious rite of Purification (Lustratio).
But the belief of the Eomans themselves was that, in the very earliest
stages of their recorded or imagined history, the primitive epoch of
complete subservience to religious forms, if it ever existed, had been
already passed, and that even in the time of the Kings something
approaching a clear line could be drawn between the functions of
Eeligious Law (Fas) and those of Secular Law (Jus). At the close of
the history of the Eepublic there could be shown, in contradistinction
to the great secular code of the Twelve Tables, a collection of religious
ordinances, believed to be even more ancient than this code, and
known as the Laws of the Kings (Leges Eegiae) 3. These laws are
' not represented as having formed a code, but merely a compilation.
They were believed to be regal ordinances, issued by different Kings,
1 See Danz, ' Das Sacramentum und die lex Papiria,' in Zeitschr. f. R. G. vi
(1867), p. 339 foil. ; Der sacrale Schuts, p. 151 foil.
2 This must have been the original meaning of the mnsecratio capitis, the
penalty of the leges sacratae. See Liv. iii. 55 ; Festus, p. 318 ; Bouche-Leclercq,
Les pontifes de Vancienne Rome, p. 196.
3 The extant Leges Regiae are to be found in Bruns, F antes juris Romani
I. 1.
THE LEGES REGIAE xv
which had been collected in the early days of the Kepublic by a
Pontiff named Papirius '. It was held that they had been publicly
exhibited in Koine, and were restored, like the Twelve Tables, after
the burning of Kome by the Gauls (390 B. c) 2. At the end of the
Republic the compilation was edited, perhaps to some extent revised,
by a scholar named Granius Flaccus, who is believed to have been
a contemporary of Caesar3 ; but there is no reason for supposing
that riaccus introduced any essential alteration in the tenor of the
ordinances. These ordinances, in the form in which they have been
preserved to us, bear the strongest internal marks of their genuine-
ness. Some of the provisions which they contain are quite pre-
historic and could never have been valid at any period of the history
of the Republic. Others deal with purely religious observances,
which may belong to any date, but may be as early as the city of
Rome itself. The Royal Laws, in fact, contain a series of ordinances,
dealing with social, moral and religious life, such as may have been
issued over a long period of time by the College of Pontiffs. It is
not likely that all of these rules really go back to the epoch of the
Kings ; but many of them must do so, for they reflect an extremely
primitive stage of culture and religious belief. In fact, one of the
most surprising features of the Royal I^aws is their lack of signi-
ficance for the ordinary current of Roman life, as it was lived in the
historical period. Where they are not a dead letter, they refer only
to slight and exceptional contingencies, to the bare outline of the
political life of the State and to the faintly denned structure of its
hierarchical organization ; whereas the Law of the Twelve Tables is
a great living force, which pervades the whole of Roman business
life. The Royal Laws reflect on the whole the rule of Fas ; the
Twelve Tables almost entirely the rule of Jus. A comparison of
the former compilation with the latter code, in regard to their re-
spective influences, exhibits more effectively than any other evidence
could do the triumph of secular over religious law even in the early
period of the Republic.
§ 5. Jus — Its different forms as exhibited in Procedure.
The counterpart to the rule of Fas is the rule of Jus. .Jus seems
originally to have meant ' That which is fitting ' 4, and the word
1 Dionys. iii. 36; Pompon, in Dig. 1. 2. 2. 36. 2 Liv. vi. 1.
3 Paulus in Dig. 50. 16. 144 ; Censorinus, De Die Nat. iii. 2.
4 Clark, Practical Jurisprudence, p. 17. Nettleship (Contributions to Latin Lexico-
graphy, p. 497) enumerates the following senses of jus in Latin literature : —
(1) a law court (e.g. in the phrases 'In jus ducere,' ' Res est in jure'),
(2) a bond or tie (e.g. in the phrases 'Jus amicitiae,' 'Jura necessitudinis'),
(3) power, authority, (4) right to do a thing, (5) law, or a system of law,
(6) what is right and fair, (7) the plural jura means either (a) rights or (b) rules
of law, ordinances, decisions, and so authority.
xvi HISTORICAL INTRODUCTION
never necessarily conveys the implication, contained in the word
Law, that the thing it describes is the result of enactment by a
Sovereign. It conveys rather the idea of valid custom, to which
any citizen can appeal, and which is recognized, and can be enforced
by, a human authority. Jus is a nugatory thing, a vain abstraction,
until it can be realized ; it is a thing recognized only in practice ;
and so indissolubly were the ideas of Eight and Satisfaction con-
nected with one another in the minds of the Romans that they used
the same word ' Jus ' for Right and for Court l. This association of
ideas gives us the clue to the fact that the only possible method
of distinguishing between the different kinds of Jus is by appealing
to Procedure. In early societies, where there is no science of Juris-
prudence, the only way in which the distinctions between different
kinds of law — public and private, civil and criminal — can be exhibited,
is by pointing to the fact that different kinds of mechanism have
been created for satisfying different kinds of claims. Thus the
characteristics of private law are those of a civil suit. Here the
action can be brought only by the injured party or his representative,
the satisfaction recovered belongs to the injured party, the Court
which gives the satisfaction is composed of some arbitrator or judge
(arbiter or judex) chosen by the consent of the parties, but approved
by the judicial magistrate who represents the State. Criminal Law
may similarly be denned in terms of Criminal Procedure. Here the
wrong done is regarded as inflicted, not merely on the individual
injured, but through him on the State. The State, therefore, will
not depend on the initiative of the injured individual to undertake
the prosecution. It can either be taken up by any citizen, or is
regarded as the peculiar duty of a magistrate. The magistrate is
often both prosecutor and judge. The defendant has no voice in
the selection of the Court. The Court consisted, in the earlier pro-
cedure at Rome which never became wholly extinct during the
Republic, of a magistrate representing the State, or of the State
itself in the form of the Sovereign Assembly of the People; at a
later period, of a select body of Judices with a President (Quaesitor),
both Judges and President being created by statute. The satisfaction
recovered from the defendant in such a trial, if it takes the form of
a fine, belongs not to the aggrieved individual but to the State ; if
it assumes the form of punishment which is not pecuniary, such
punishment is inflicted by the State. The third class of occasions
on which the State intervenes to correct a wrong or to chasten an
individual, is that governed by the rules of Administrative Law2.
The procedure springing from this Law has analogies both to civil
1 See note 4, p. xv.
2 On this branch of Public Law see Mommsen, Staatsr. i, p. 172.
THE DIFFERENT FORMS OF JUS xvii
and to criminal jurisdiction. Administrative jurisdiction has as its
object either the enforcement of a personal service to the State on
an individual, or the exaction of a debt which he owes to the State.
The obligation to service is generally enforced by a fine imposed by
the magistrate. But whether what is demanded by the State takes
the form of personal service or a pecuniary debt, the characteristic of
Administrative jurisdiction at an early period of Roman History is
that the magistrate who represents the State has a double character.
He is not only prosecutor or plaintiff but also judge. This principle,
however, was eventually modified. If the fine imposed exceeded
a certain limit, an appeal to the People was allowed l ; and, later
still, the penalty might be sought either by a magistrate or a
common informer before a civil court \ When a debt to the State
was the object of dispute, the custom may eventually have been
established that the magistrate should not himself judge, but should
appoint for this purpose a panel of those assessors of debts or
damages who were known as Recuperatores 2.
The question as to what particular cases shall fall under each of
these three heads of Civil, Criminal and Administrative Law is one
that is answered differently by different political societies ; and Rome
herself gave different replies to this question at various periods of
her history. But we know of no period in the life of Rome when
the distinction between these three types of Law and Procedure was
not clearly grasped, and expressed by the higher judicial authorities,
who were at Rome in a very real sense the makers of law.
§ 6. The ultimate sources of Jus — The Monarchy and
the Early Republic.
The problem of the ultimate source and sanction of Jus was not
one that troubled the Roman to any appreciable degree at any period
of history. He was content to regard it as the product of Custom
assisted by Interpretation. At a later period he supplemented it by
acts of Legislation ; but, even when he did 'so, he was much less
concerned with the words of the enactment than with the manner
in which these words were interpreted. Scarcely any people has
had less of a gift, or natural inclination for, scientific legislation or
the formation of a Code. The Roman's dependence on authority and
skilled interpretation was, therefore, great ; and this authority and
power of interpretation are believed to have been represented, in the
1 This procedure is illustrated by the Lex Bantina (Bruns, Fontes, iii. 9). It
is there ordained ' Earn pequniam quei volet magistratus exsigito. Sei postulabit
quei petet, pr(aetor) recuperatores . . . dato . . . facitoque joudicetur.'
3 Compare the procedure ordained by the Lex agraria of 111 B.C. (Bruns,
Fontes, iii. 11), II. 36-39.
xviii HISTORICAL INTRODUCTION
earliest times, by the King and the College of Pontifices. Justice could
only be obtained by a litigant who knew the formularies of action,
precise verbal accuracy in which was necessary for the successful
conduct of a suit l. But this knowledge could be obtained only from
the King and his Pontiffs. The King, too, must have given the ruling
in law which determined what form of action should be employed 2.
Even at this early period the private Judex or Arbiter may often
have been used for the final settlement of a suit 3 ; but the King must
have assisted in his appointment ; and his judgment must have
been conditioned by the preceding form of action which the King
and the Pontiffs had thought appropriate to the suit.
The change from Monarchy to Kepublic could have made little
difference in the manner in which the law was revealed to the
Eoman litigant, except in so far as this change may have increased
the power of the College of Pontiffs. The annual tenure of the
consulship, and the fact that each occupant of this office was
hampered by a colleague, prevented the new magistracy, which was
supposed to give the forms of Jus, from exercising over its skilled
advisers the authority which had been once wielded by the King ;
and the patrician aristocracy, each member of which might be a
consul or a pontiff, must now have attained a solidarity which it had
never known before. The tendency of this aristocracy was to close
up its ranks and to assert a monopoly, not only of office, but of
knowledge of the forms of law.
§ 7. Patricians and Plebeians.
Had Eome been a homogeneous community, there would perhaps
have been no agitation for the revelation of the principles of law
which underlay the forms of procedure, and there would therefore
have been no tendency towards an early codification. But Kome
was composed of two communes, not of one. There was a Plebs
within the Populus ; and this Plebs possessed a solidarity which
gave it the means of lifting up its voice in a demand, not for power,
but for the protection of legal rights, and for the knowledge which
was essential to that protection. The origin of the Plebs is wholly
unknown. The favourite assertion of modern writers, that the
Plebeians were a class which had emerged from a condition of client-
ship to the Patricians, does very little to solve the problem of the
origin of the former class, except in so far as it suggests that some of
the Plebeians were inhabitants of conquered cities that had been
deported to Kome, and that others were voluntary sojourners from
1 Gains, iv. 11. » Cic. de Rep. v. 2, 3.
3 Savigny, System des rom. Rechts, vi. p. 287 ; BernhOft, Stoat und Recht der
Kbnigszeit, p. 230.
PATRICIANS AND PLEBEIANS six
distant cities who were protected by the government and the
patrician clans. But it seems impossible that causes such as these
could have led to the creation of a mass of men that appears in early
Eoman history as forming the bulk of the community ; and it is
possible that further evidence (archaeological and ethnological) may
show that the distinction between Patricians and Plebeians is one
based on race, and that the existence of the Patricians as a governing
class is the result of the conquest of a native race by bands of im-
migrant wanderers1. Throughout Koman law there is a curious
persistence of dual forms for the attainment of the same end which
may be a survival of two distinct systems of customary law possessed
by different peoples, the conquerors and the conquered. Thus we
have the Sponsio side by side with the Nexum, marriage by Con-
farreatio side by side with marriage by Usus or Coemptio, the
testament in the Comitia Calata side by side with the testament ' per
aes et libram.' The procedure ' by the copper and the scales,' in
the manifold forms which it assumes, seems to be especially a
characteristic of the popular law of the commons. The exclusion of
the Plebeians from the magistracy and the priesthood, and the denial
to them of the right of Conubium with Patricians, may also point
in the direction of a fundamental racial distinction between the two
classes. But the disabilities consequent on this racial distinction,
if we suppose it to have existed, were by no means limited to the
domain of public rights. They pervaded the whole of Koman life to
such an extent that there is considerable justification for the view
that the early condition of the Plebeian was very like that of the
client. In the first place, the Patricians maintained that they alone
formed Gentes, and the condition of being a member of a Gens, or
Gentilis, was that the man who made the claim should be able to
point to a perfectly free ancestry 2. In this claim of the Patricians
we therefore have the implication that the ancestors of the Plebeians
were not free. In all respects but this, the Plebeians formed Clans
just like the Patricians. A group of Plebeians who bore a common
name formed a Stirps, but this Stirps was supposed to be a mere
offshoot of some patrician Gens on which it was held to be de-
pendent. It possessed no independent rights of its own. A group
of Plebeians who could trace their ancestry back to a common
1 Compare Ridgeway, The early age of Greece, p. 257. ' We may conclude that
the two main elements in the population of. early Rome were the aboriginal
Ligurians, who formed the Plebs, and the Umbrian Sabines, who formed the
aristocracy.' The evidence is perhaps not sufficient to warrant so definite
a conclusion ; but the more that I have dwelt on the lack of homogeneity in
early Roman life, the more definite has become my conviction that we have to
deal with racial, not merely with social, differences.
3 l Gentiles sunt . . . quorum majorum nemo servitutem servivit ' (Cic. Top.
6. 29).
xx HISTOEICAL INTRODUCTION
head were called Agnati ; but these Agnati had not the rights of
inheritance, or perhaps the other family rights, possessed by the
Gentiles. The rights of plebeian Agnati were recognized by the
Twelve Tables ; but this was perhaps the first recognition that they
gained. In the second place, of the two rights which were sub-
sequently considered as forming the minimum conditions of citizen-
ship, the Jus Conubii was, we know, not possessed at all by Plebeians,
and it is probable that they possessed the Jus Commercii in a very
imperfect form. We cannot, it is true, point to a time when no
Plebeian could conclude a contract, or bring an action, unless, like
a client, he acted through a patron. • But it is probable that in early
times he had a very limited capacity for controlling land ; that he
held the ground, which he worked for himself, merely on sufferance
(Precario), and not in virtue of his civic right (ex Jure Quiritium) ].
This seems proved by the fact that he was not originally liable to
service in the legions 2 : for there can be little doubt that such
service was a burden imposed on landowners 3. It seems that the
one great condition which led to the rise of the Plebeians as a
r power in the State was the recognition of their rights as independent
holders of land. This recognition was accorded because their ser-
vices were required as soldiers in the legions and as tax-payers.
They could now hold and dispose of Kes Mancipi ; that is, those
kinds of property which were assessed at the Census (Kes Censui
Censendo) 4 and which, as being liable to such assessment, required
peculiar methods of transfer as evidence of ownership. This change
must have preceded or accompanied the great epoch of reform which
is associated with the name of Servius Tullius.
§ 8. Acquisition of voting rights by Plebeians — Assemblies
of the Populus and of the Plebs.
When the army was made the basis of the new Comitia Centuriata,
the wealthier Plebeians who were members of the army gained a
vote ; and the Comitia Curiata, originally patrician, must soon have
come to admit members of the Plebs. But this voting power did
little good to the class as a whole. Its true strength lay in its
military organization. The first secession was an incident in a
campaign ; and it is not surprising that the officers whom the
Plebeians appointed to protect their persons against the patrician
1 Cf. Savigny, Recht des Besitees (seventh edition), p. 202.
a If we believe that the Servian census was intended to create liability to
service for Plebeians. Cf. p. xxv.
3 This seems shown by the continuance of the use of the word assidui for the
members of the Servian Classes.
1 Cic. pro Flacco, 32. 80.
THE TWELVE TABLES xxi
magistrates, bore the military name of Tribuni. The creation of the
Tribunate gave the Plebs a political organization, and was the
starting-point of that dualism which runs through the whole of the
Eoman constitution — a dualism expressed in the distinction between
the Comitia of the People and the Concilium of the Plebs, between
Lex and Plebiscitum, between Magistratus Populi and Magistratus
Plebis, between the Imperium of the one and the Sacrosanctitas of
the other. The tribunes, however, could offer only personal assistance
to outraged individuals, and though they proved a potent channel
for the petitions of the Plebs as a whole, they were a very ineffective
means of protecting the private rights of individual members of this
order. Effective protection was in any case impossible until a fuller
light had been thrown on the question what the rights to be pro-
tected actually were. Hence the demand for the publication of the
principles of the law on which the jurisdiction of the patrician
magistrates was based.
§ 9. Unification of the Law by means of the Tivelve Tables.
The story of the creation of the Decemvirate and the formation of
the Code of the Twelve Tables, which has come down to us in a
highly picturesque and legendary shape, presents us with the picture,
fir.st of a prolonged agitation of ten years (462-452 B. c.) maintained
by the tribunes of the Plebs, then of a commission sent to gain
knowledge of Hellenic codes, next of the appointment of two
successive boards of Decemvirs for the years 451, 450 B. c., and
finally of the ratification of the Code by the Comitia Centuriata and
of its publication, in its completed form, by the consuls of 448 B. c. 1
The Greek influence on the Code 2, although slight, is undeniable,
because it was unavoidable. It may not have been gathered, in the
way affirmed by tradition, by the appointment of a commission to
inspect the systems of law of different Hellenic states ; but it was,
at the least, an inevitable result of the prolonged influence of the
civilization of Magna Graecia 3, to which Eome had been .subject
from the days of her infancy — an influence which successively
moulded her army, her coinage, her commerce and her literature.
Again no State, however self-centred, could dream of undertaking
such an enterprise as a written system of law without glancing at
similar work which had already been accomplished by neighbouring
cities. But, in spite of the fact that some of its outline and a few of
1 Liv. iii. 57.
2 See Pais, Storia di Roma, i. 1, p. 584. He describes the law of the Tables as
the result of a fusion of the rude national law with the more civilized dispositions
of Greek culture.
3 Cf. Voigt, XII Tafeln, i, p. 14.
xxii HISTORICAL INTRODUCTION
its ideas may have been borrowed from Greek sources, the Law of
the Twelve Tables is thoroughly Roman both in expression and in
matter. The form of expression is, it is true, not that of later
Roman legislation — complicated, technical, obscure. Had it been so,
the Twelve Tables could scarcely have survived. It was the form
that was current in the verbal juristic maxims of this and a later
period — brief, gnomic, rhythmic and imperative \ As to the matter,
that was conditioned by the task which the Decemvirs had to
perform — a task which they accomplished with an astonishing
degree of success. Their object was to make a common law for
i Roman society considered as a whole. It was no business of theirs
to abolish patrician privileges or to remove the peculiarities of
patrician ceremonial ; but they had to find a system of Jus which
would be equally valid for all Romans ; and this they naturally
found in the customary law of the mass of the people ; that is, of the
Plebs. They were forced to recognize a social disability of the Plebs,
as exemplified in the absence of Conubium with Patricians 2 ; for to
remove it would have been an alteration of the Constitution as well
as an infringement of patrician rights. But how completely they
ignored the existence of the Plebs as a separate political community
is shown by the fact that the tribunes do not seem to have been
mentioned in the law at all. The assumption probably was that the
publication of the Code should render the Tribunate unnecessary ;
and this it might have done, had the patrician government lived up
to its promises.
The law of the Twelve Tables, as the ' body of the whole of
Roman law ' (' corpus omnis Romani juris ') and the ' fountain of all
public and private law' (' fons omnis publici privatique juris') —
designations both of which are applied to it by Livy3 — contained
ordinances on all the three branches of Jus, civil, criminal and con-
stitutional. In the matter of civil law, we find regulations as to
marriage and family relations, inheritance, testamentary disposition,
debt and usury. The marriage recognized was that known as the
result of usus— a contract, that is, which was concluded by consent
and strengthened by prescription 4. It was ordained that the three-
fold sale of a son by his father should issue in the freedom of the
son 5 : although whether the Twelve Tables made this form of
emancipation the basis of adoption is uncertain. The manumission
of slaves who had been left free by testament, on the condition of
purchasing their freedom, was also facilitated6. Recognition was
1 Cf. Diod. xii. 26 j^ S« ypcujxtffa voiMOtaia, $pa\eais teal airepirTois
Siffifive 6av/j.a£o(ifV7) fiexpt ruiv naff Jjfuas naipSiv.
a Cic. de Rep. ii. 37, 63. * Liv. iii. 34.
* Gaius, L 111. s Gaius, i. 132. ' Ulpian, Reg. ii. 4.
THE TWELVE TABLES xxiii
given to testamentary disposition as performed ' per aes et libram ' l •
while, in the matters of intestate inheritance and guardianship, the
rights of the Agnati, common to Plebeians and Patricians, were
regarded as prior to those of the Gentiles 2. The harsh law of debt,
which was a result at once of freedom of contract and of the very
severe view which ancient societies take of the defaulting debtor,
was maintained ; the Judicatus still became the bondsman of his
creditor3, but now (perhaps for the first time), all the stages of the
process of execution were published to the world, the rights of the
creditor were defined, the chances of escape open to the debtor were
accurately described. Loans on interest were permitted ; but the
maximum rate of interest was fixed at ' unciarium foenus ' 4 (probably
ten per cent.) ; and the usurer who exceeded this rate was punished
more severely than the ordinary thief ; he was compelled to restore
fourfold 5. With respect to Civil Procedure (the exclusive knowledge
of which had been one of the greatest elements of strength in the
patrician government) it is clear that the outlines of the process —
such as the rules for the summons of parties and witnesses, and for
the length of the trial 6 — were described. But it is very questionable
whether the Tables went so far as to specify the Forms of Action ;
the actual words and gestures, that is, which had to be employed
in any given case. We find a tradition that these forms were not
revealed until nearly 150 years later, and that they were first given
to the world in 304 B. c. by a certain Cnaeus Flavius7, a freedman's
son and the clerk of Appius Claudius, the censor of 312 B.C., who
was apparently also pontiff. But the traditions connected with the
publication at Rome, even of the simplest information about Pro-
cedure, are exceedingly obscure. On the one hand, we hear that
this same Cnaeus Flavius published a Calendar which gave a record
of Court Days (Dies Fasti) 8 ; on the other hand, it was believed that
a Calendar of some kind had been already published by the
Decemvirs9. It is possible that the decemviral Calendar had
become antiquated, or that it had not been restored or republished
after the burning of Rome by the Gauls (390 B. c.) 10 ; but it is clear
that the Romans of Cicero's time had much vaguer ideas about the
epoch at which the forms of Procedure were made accessible to the
public, than they had about the date at which the principles of
Substantive Law were given to the world.
Cic. de Inv. ii. 50. 148 ; [Cic.] ad Her. i. 13. 23 ; Gaius, ii. 224.
Ulpian in Collatio, 16. 4.2. 3 Gell. xv. 13. 11 ; xx. 1. 45.
Tac. Ann. vi. 16. 6 Cato, de Re Rust, praef.
Brims, Fontes, i. 2, Tab. i.
Cic. de Or. i. 41. 185 ; ad Att. vi. 1. 8 ; Liv. ix. 46. 5.
8 Cic. ad Alt. I.e. ; pro Mur. 11. 25 ; Liv. I.e. ; Plin. H.N. xxxiii. 1. 17.
9 Macrob. i. 13. 21. lu Liv. vi. 1 ; Cic. ad Att. I. c.
xxiv HISTORICAL INTRODUCTION
The criminal law of the Twelve Tables reflects a more primitive
stage of thought than its civil ordinances. But this is not sur-
prising ; for, throughout the whole of Eoman History, the criminal
law lags far behind the civil. The Tables recognize the principles
of self-help and retaliation. A limb is to be given for a limb ; but for
minor assaults pecuniary compensation is allowed \ We still find
the idea of capital punishment taking the form of an expiation to an
outraged deity ; thus the man who destroyed standing corn by night
was hanged as an offering to Ceres 2. The belief in witchcraft still
survives ; for death is the penalty for incantations 3. It is also the
penalty on the judex who has taken bribes, and for treason
(Perduellio) in the form of ' rousing an enemy against the State or
handing over a citizen to the enemy4.'
But it is where criminal law touches questions of personal liberty,
and is connected with constitutional law, that the legislation of the
Twelve Tables is most advanced. The principle of the Appeal to the
People (Provocatio) against the sentence of the magistrate was
maintained 5 ; it was enacted that no law or sentence should be
passed to the detriment of an individual (Privilegia ne inroganto)6 ;
and it was laid down that no capital sentence could be issued except
by ' the greatest of the Comitia ' (nisi per maximum comitiatum) 7 ;
that is, by the Assembly of the Centuries, or Exercitus, gathered in
the Campus Martius.
An important aspect of the Public Law of the Twelve Tables is
the guarantee of the right of free association, provided that it have no
illegal intent. While nocturnal gatherings (coetus nocturni) are
prohibited 8, the formation of gilds (collegia) is encouraged. Such
gilds were to require no special permit for their existence, and the
rules which they framed for their own government were to be valid,
provided that these rules were no infringement of public law 9.
Lastly, the most typical and important utterance of the Tables is
to be found in the injunction that ' the last command of the People
should be final 10.' It is an utterance which shows how little the
Decemvirs regarded their own work as final, how little they were
affected by the Greek idea of the unalterability of a Code, of a Code
forming a perpetual background of a Constitution — in fact, by the
idea of a fixed or written Constitution at all. It is an utterance that
expresses the belief that law is essentially a matter of growth, and
Gell. xx. 1. 12-14. 2 Plin. H.N. xviii. 3. 12. 3 Cic. de Rep. iv. 10. 12.
Marcian in Dig. 48. 4. 3. 5 Cic. de Rep. ii. 31. 54.
Cic. de Leg. iii. 4. 11. 7 Cic. de Leg. I. c.
Seel, in Catil. 19. 9 Gaius in Dig. 47. 22. 4.
0 ' Ut quodcumque postremum populus jussisset, id jus ratumque esset ' (Liv.
vii. 17).
THE LEGISLATIVE ASSEMBLIES xxv
prepares us for the fact that Eome saw no further scheme of suc-
cessful codification until nearly a thousand years had passed.
§ 10. Future Progress of Law. Legislation and Interpre-
tation; the Legislative Assemblies.
For the future the progress of law was to depend on the two
processes of legislation and interpretation. The legislative assemblies
were those of the Populus and the Plebs. The Populus, which
comprised the whole of the Koman people, Patricians as well as
Plebeians, met, either by centuries, as the Comitia Centuriata, or
by tribes, as the Comitia Tributa, under the presidency of a Consul
or Praetor.
The Comitia Centuriata was an assembly that had grown out of the
army-organization of the whole Eoman people. It was the whole
Host or Exercitus expressing its political will. It was for this
reason that the military unit (the centuria) was the voting unit.
And this was also the original reason why we find in this assembly
the division into classes, or aggregates of citizens grouped together
on the basis of a particular property qualification ; for the different
types of military service were originally determined by degrees of
wealth. But the element of wealth in this assembly, which is
exhibited by the division into classes, soon gained a political
significance. The voting power of the classes differed considerably.
That of the wealthy was greater than that of the middle-class,
and that of the middle-class far in excess of that of the poor. Thus
the Comitia Centuriata was always assumed to have something of an
aristocratic character ; and the change which its constitution under-
went during the Kepublic was at least partly directed by an effort to
modify this character. The scheme recognized five classes, the
census of each being (in terms of the later assessment of the
historical period) respectively 100,000, 75,000, 50,000, 25,000, and
11,000 (or 12,500) asses. The first class contained eighty centuries,
the second, third, and fourth, twenty each ; the fifth, thirty. Thus the
centuries of the first-class were almost equal to those of the four other
classes put together. The weight of aristocratic influence may be
still more fully realized if we remember that the corps of Koman
Knights (centuriae equitum equo publico) formed eighteen centuries
in this assembly, and that the mass of citizens whose property fell
below the minimum census were grouped in a single century. The
collective vote of the first class and the knights was represented by
ninety-eight centuries ; the collective vote of the whole of the rest of
the community (including four or five centuries of certain professional
corporations connected with the army, such as the Fabri) was
xxvi HISTORICAL INTRODUCTION
represented by ninety-five or ninety-six centuries \ Thus the upper
classes in the community possessed more than half the votes in this
assembly.
A modification in the structure of the Comitia Centuriata was
subsequently effected, which had the result of giving a more equal
distribution of votes. No precise date can be assigned for the
change ; but it has been thought not to be earlier than 241 B. c.,
the year in which the number of the tribes was raised to thirty-five2.
The principle of the new arrangement was that the tribe was made
the basis of the voting power of the classes. There is considerable
divergence of opinion as to the method in which the centuries were
distributed over the tribes ; but, according to the more usually
accepted view which has been held by scholars from the seventeenth
century onwards 3, the five classes were distributed over all the
tribes in such a manner that there were two centuries of each class —
one century of Seniores and one of juniores — in a single tribe. Each
class would thus have two votes in each tribe and seventy votes in
all. The total number of centuries belonging to the five classes
would be 350, of which the first class would possess but seventy
1 The scheme was as follows : —
THE CAVALBT.
18 centuries, chosen from the richer classes (Dionys. iv. 18), but probably
with no fixed property qualification.
THE INFANTRY.
1st classis— 100,000 asses (Liv. i. 43, Dionys. iv. 16, Polyb. vi. 23) ; 120,000
asses (Plin. H. N. xxxiii. 3, Festus, p. 113).
Seniores, 40 centuries ) OQ
Juniores, 40 centuries (
2nd classis — 75,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) OQ
Juniores, 10 centuries \
8rd classis — 50,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) 20
Juniores, 10 centuries )
ith classis — 25,000 asses (Livy and Dionysius).
Seniores, 10 centuries ) ~0
Juniores, 10 centuries \
5th classis— 11,000 asses (Livy) ; 12,500 (12£ minae, Dionysius).
Seniores, 15 centuries ) ««
Juniores, 15 centuries \
Fabri— 2 centuries (voting with the 1st class, Livy ;\ 5 centuries (Livy).
with the 2nd class, Dionysius).
Accensi, cornicines, tibicines, 3 centuries, r 4 centuries (Dionysius).
Livy ; 2 centuries, Dionysius (voting
with the 4th class, Dionysius).
Capite censi or Proletarii, 1 century (Livy). 1 century.
Total 193 or 194 centuries.
3 Cf. Liv. i. 43. He describes the new organization as existing ' post expletas
quinque et triginta tribus.' Yet he does not say that it began its existence at
that date. Mommsen (Staatsrecht, iii, p. 270) conjecturally assigns the change to
the censorship of C. Flaminius (220 B.C.).
8 This system was first suggested by Pantagathus, who died in 1657.
THE LEGISLATIVE ASSEMBLIES xxvii
votes ; or, if we add the other centuries of knights (18), of corporate
bodies such as the Fabri (4), and of Proletarii (1), we find that the
first class and the knights commanded but eighty-eight votes out of
a total of 373 1. This system, which lessened the influence of the
wealthier classes, was temporarily abolished by Sulla in 88 B.C.2;
but it was soon restored, and there is every reason to suppose that it
survived the Republic and formed the basis of the arrangement of the
Comitia Centuriata under the Principate3. Although the Comitia
was organized on this tribal basis for the distribution of voting power,
the voting unit was still the century and not the tribe. The seventy
centuries of each class voted in turn ; the decision of each century
was determined by the majority of the votes of its individual
members ; and the majority of the centuries determined the decision
of the assembly.
The Comitia Centuriata, although of the utmost importance in the
structure of the* Roman Constitution as the body that elected the
magistrates with Imperium and the censors, that exercised capital
jurisdiction and declared war, ceased to be employed in the period of
the developed Republic as an ordinary legislative assembly. It was
difficult to summon and unwieldy in its structure, and its position
as a legislative body came to be usurped by the two assemblies of the
tribes. Yet, as we shall see *, it may have been held that legislative
acts, which affected the fundamental principles of the Constitution,
should be submitted to the centuries.
The Comitia Tributa Populi had probably been instituted in
imitation of the Plebeian Assembly of the Tribes. It was found
convenient that the Populus should meet in this way as well as the
Plebs ; and the Tribus — the voting unit which had already been
employed for assemblies of the Plebs — was used for assemblies of
the whole people. The Tribus was always a division of the territory
of the Roman State in Italy, and the tribes grew in number as this
territory increased until by the year 241 B.C. they had reached their
final total of thirty-five. It is generally believed that originally only
holders of land were registered as members of a tribe 5 ; but there is
1 Mommsen's system (Staatsr. iii, p. 275) is different, and is based on the view
that the description given by Cicero (de Rep. ii. 22. 39, 40) refers, not to the older
arrangement, but to the reformed Comitia. Mommsen allows the 70 votes for
the 70 centuries of the first class, but thinks that the 280 centuries of the other
classes were combined so as to form only 100 votes. The total votes in the
Comitia would thus be 70 + 100 + 5 (Fabri, &c.) + 18 (Knights); i.e. 193 in all, as
in the earlier arrangement.
2 App. Bell. Civ. i. 59.
3 This Comitia seems still to have met for formal business as late as the third
century A.D. At least Dio Cassius (Consul 219 or 220 A.D.) describes the flying
of the flag from the Janiculum as a custom still surviving in his day (xxxvii. 28).
4 P. xxix.
' This was tke view taken by Mommsen (Staatsr. iii, pp. 182, 184). He held
C 2
xxviii HISTORICAL INTRODUCTION
no sufficient evidence for this view, and it seems safer to conclude
that, while every holder of land was registered in the tribe in which
his allotment lay, every landless man was registered in the tribe in
which he had his domicile. At a later period registration became
more arbitrary, and had little or nothing to do with the residence of
the person registered. The censor enrolled individuals in tribes at
his pleasure ; usually he entered a man in the tribe to which his
father had belonged ; but he might, if he willed, transfer him from
one tribe to another (tr-ibu movere).
In an assembly organized by tribes (tributim) the vote of the
majority of the members of a particular tribe determined the decision
of that tribe, and the vote of a majority of the tribes the decision of
the assembly. The Comitia Tributa Populi must have been
instituted later than 471 B. c., which is the traditional date at which
the Plebs began to meet by tribes J ; and it may have been in existence
some twenty years later, at the date of the formation of the Twelve
Tables 2. The first evidence for it as a legislative assembly belongs
to the year 357 B. c. s. In the later Republican period it was
probably quite the most active of the legislative assemblies of the
whole people.
The Comitia Curiata, the oldest of all the Roman assemblies,
whose structure was based on the ancient Curiae or Parishes of
Rome, ceased in the historical period to be a true legislative assembly.
It met only for the performance of certain formal acts, such as the
lex curiata which ratified the Imperium of the higher and the Potestas
of the lower magistrates 4. For this purpose the thirty Curiae were
in Cicero's day often represented by but thirty lictors 5. The
assembly may have been as scantily attended when it performed the
formal acts vested in it when it met as the Comitia Calata 6. In this
(ii, p. 403) that Appius Claudius, the censor of 312 B.C., first included the
landless citizens in the tribes (cf. Girard, Manuel, p. 31) ; but our authorities
(Diod. xx. 46, Liv. ix. 46) only represent Appius Claudius as allowing citizens
to be registered where they pleased, and as spreading the lower classes (humiles)
over all the tribes. The definition which we possess of the Comitia Tributa
(Laelius Felix ap. Gell. xv. 27) speaks of it only as an assembly at which the
votes are given ' ex regionibus et locis.'
1 Liv. ii. 56. Previously it had probably met by Curiae. Hence the tradition
that the early tribunes were elected in the Comitia Curiata (Liv. I. c., Cic. ap.
Ascon. fn Cornelian, p. 76).
3 When the Tables enacted ' De capite civis nisi per maximum comitiatum
. . . ne ferunto ' (Cic. de Leg. iii. 4. 11), this mention of the 'greatest Comitia'
(i. e. the Comitia Centuriata) seems to imply the existence of a lesser Comitia
with judicial powers ; and the latter could scarcely have been the Comitia
Curiata of the period.
3 Liv. vii. 16.
4 For the application of the lex curiata to the minor magistracies, as well as
to those with Imperium, see Messala ap. Gell. xiii. 15. 4 ' Minoribus creatis
magistratibus tributis comitiis magistratus, sed Justus curiata datur lege.'
6 Cic. de Leg. Agr. ii. 12. 31. 6 Gaius, ii. 101 ; Gell. xv. 27.
THE CONCILIUM PLEBIS xxix
capacity it was gathered under the presidency of the Pontifex
Maximus for the inauguration of the Eex Sacrorum and the
Flamines, and for the Detestatio Sacrorum — the renunciation of pre-
existing religious obligations which was made by a man who passed
from his Gens, either by an act of Adrogatio or by transition from
the patrician to the plebeian order \
The assembly of the Plebs 2 excluded the patrician members of the
community, and continued to be organized by tribes. Its true
designation was Concilium Plebis, Concilium differing from Comitia
as a gathering of a part of the people differs from a gathering of the
whole 3. This assembly -is often spoken of by ancient writers as the
Comitia Tributa ; but it differed from the Comitia Tributa Populi in
two respects. It did not include Patricians, and it was presided over,
not by a magistrate of the People, but by a magistrate of the Plebs.
When it met for legislative purposes, it was presided over only by
the Tribune of the Plebs. The legislative authority of the Concilium
Plebis had developed steadily during the first two centuries of the
Republic. At first this assembly could only pass ordinances binding
on the members of the Plebs themselves. Then, by the Valeric-
Horatian and Publilian laws (449 and 339 B.C.) it gained the right of
considering and initiating proposals which affected the interests of
the whole community ; this right being probably acquired and
exercised by the creation of increasing facilities for bringing
resolutions of the Plebs as petitions to the assemblies of the people,
to be confirmed or rejected by the latter4. Since the Plebs came
gradually to constitute the majority of voters in the assemblies of
the people, these petitions must as time went on have been almost
invariably confirmed. The distinction between Plebiscite and Leges
must have been growing more and more formal and unreal when
the LexHortensia(287 B. c.) enacted that henceforth Plebiscita should
have the force of Leges5. From this time onwards there was no
difference between the Populus and the Plebs in matters of legislation,
except that it may have been held by some thinkers that fundamental
changes in the Constitution, such as those introduced by Sulla, ought
1 Gell. I c. * P. xxi.
3 Laelius Felix ap. Gell. xv. 27 ' Is qui non [ut] universum populum, sed
partem aliquam adesse jubet, non " comitia," sed "concilium" edicere debet.'
See Mommsen, Staatsr. in, p. 149.
4 Strachan-Davidson, starting from the view that Plebiscita were originally
sent as petitions to the consuls and senate (cf. Dionys. x. 31), suggests that the
Valerio Horatian law may have ' laid down that the consul must so consult the
senate, or it may even have forbidden him arbitrarily to disregard a recom-
mendation of the senate (should such be obtained) that he should put the
question to the populus' ; and that the Publilian law ' may have struck out the
intervening consultation of the senate, and may have required the consul to
bring the petition of the plebs at once before the populus ' (Smith, Diet, of Antiq.
ii, p. 439). s Gaius, i. 3 ; Pompon, in Dig. 1. 2. 2. 8.
xxx HISTORICAL INTRODUCTION
to be ratified by the Comitia Centuriata1. But in nearly all the
spheres subject to the commands of the people, the Populus and the
Plebs were equally competent ; a Lex could repeal a Plebiscitum and
a Plebiscitum a Lex *. This dual sovereignty, which is one of the
most curious of the theoretical features of the Koman Constitution,
was rendered possible and harmless by the fact that the mass of the
voters in all the different assemblies were composed of the same
individuals, and by the central control exercised by the Senate over
all magistrates, and therefore over all assemblies before which these
magistrates introduced their proposals. The initiation of legislation
was, in fact, during the days of Eepublican stability, in the hands of
the Senate ; but, apart from the exercise of this authority, which had
long had a de facto recognition, but was not recognized by law until
the time of Sulla (88 and 81 B. c.)3, the Senate did not pretend to
exercise legislative power during the Eepublic. In its own right
it could only exercise certain powers approximating to those of
legislation. We find it, for instance, fixing the rate of interest 4 ;
but such an ordinance technically assumed the form merely of
advice to the judicial magistrates as to the rates which they should
recognize in their edicts. The Senate, however, exercised the power
of dispensing individuals from the existing laws 5 ; and we find it
also warning the community that some enactment which had passed
the people was, on technical grounds, invalid, and was therefore not
binding either on the magistrates or on any member of the State 6.
In few societies of the ancient world was the legislative power
so unfettered as it was at Rome. The Romans drew no distinction
between constitutional law and other laws ; the Roman assemblies
could create new assemblies, could alter their own structure, could
modify or even suspend the Constitution by granting enormous
powers to individuals. There was no sphere of human interest
outside their control ; their power of utterance was limited only by
a respect for religious law7. We might, therefore, have expected
that legislation would have been the chief path on which Roman
law advanced to its maturity. But this expectation is disappointed,
so far as the progress of the Jus Privatum is concerned. We do
indeed find a certain number of statutes which deal with important
matters of private law, such as the Lex Aquilia de Damno, the Lex
1 We know, at least, that some of Sulla's legislation was effected through the
Comitia Centuriata (Cic. pro Dom. 30. 79).
Thus, Cicero was exiled by a Plebiscitum, but restored by a Lex Centuriata.
App. Bell. Civ. i. 59. * Cic. ad Att. v. 21. 13.
Ascon. in Cornelian, p. 58.
Cic. pro Domo, 16. 41 ; Ascon. in Cornelian, p. 68.
Hence the saving clause in enactments, ' Si quid sacri sancti est quod non
jure sit rogatum, ejus hac lege nihil rogatur ' (Probus). Cf. Cic. pro Caec. 33. 95.
INTERPRETATION BY THE MAGISTRATE xxxi
Furia on testaments, the Lex Voconia on inheritances ; and it is also
true that certain important changes in civil procedure were sanctioned
by the people, the most far-reaching of these changes sing perhaps
that effected by the Lex Aebutia, which helped to replace the Legis
Actio by the Formula l. But the legislation referring to private law
and civil procedure at Rome is in no way comparable in bulk to
that which dealt with criminal and constitutional law. Even those
Leges or Plebiscita that dealt with civil procedure, perhaps did little
more than ratify a change that had been already accomplished in the
courts, or carry this change a few steps further. And, as to the
alterations in the material elements of private law, these alterations
were determined to a far greater extent by interpretation than by
legislation.
§11. Law as the result of Interpretation. — Interpretation
by the Magistrate.
Interpretation at Rome assumed two forms. It was either the
work of the magistrate or the work of the jurisconsult. The
magistrate chiefly concerned with the interpretation of private law
was the Praetor. The office of Praetor is said to have originated
as a result of the Licinian laws of 367 B. c. 2 This new magistrate
was created for the purpose of performing most of the judicial
business of the Consuls, who, on account of the increasing complexity
of political life, were found incapable of conducting the whole of the
home and foreign affairs of Rome. For more than 120 years this
single magistrate administered civil justice to citizens and aliens.
At the close of this period (242 B.C.) a second Praetor was appointed3
whose duty it was to decide cases between aliens (Peregrini) and
between citizens and aliens. The former (Praetor qui inter cives jus
dicit) was known by the colloquial name of Praetor Urbanus ; the
latter (Praetor qui inter peregrinos jus dicit) was known by the
similarly abbreviated title of Praetor Peregrinus.
Every magistrate at Rome was in the habit of notifying to the
public the manner in which he meant to exercise his authority, or
any change which he comtemplated in existing regulations, by means
of a public notice (Edictum). In the case of magistrates who were
merely concerned with administrative work, such notices were often
occasional (edicta repentina) ; in the case of magistrates concerned
with judicial business, they were of necessity valid for the whole
period during which the magistrates held their office, and capable of
1 P. xl. a Liv. vi. 42.
3 Liv. Ep. 19. The date is not quite certain. Lydus (de Mag. i. 38) places the
event in 247 B. c. See Mommsen, Staatsr. ii, p. 196.
xxxii HISTORICAL INTRODUCTION
transmission to their successors (perpetua et tralaticia) ; for juris-
diction does not admit of occasional and isolated ordinances which
have only a temporary validity. The edicts of the Praetors were
necessarily of this latter type. Each new occupant of the office
might admit rulings not recognized by his predecessors ; these
rulings were forced on him by the fact that new and unexpected
combinations in legal relations had been presented to his notice, or
that the existing rules did not answer to a growing sense of equity.
New rulings cannot be introduced into a system of law without
affecting old ones. The fact that there was an edict gave the
Praetor a chance of smoothing out anomalies, instead of exhibiting
inconsistencies, in the law. The edict admitted of change and
development ; but it was a change that was subtle and gradual, not
violent and rapid. The process by which it was reached professed
to be a process of interpretation. It was really creative work of
a highly original kind.
The Edictum of the Praetor *, in the sense in which this word
is commonly used, is really a colloquial expression for the Album,
or great notice-board exhibited by the Praetor, which contained
other elements besides the Edicta in their true and proper sense.
It contained the Legis Actiones and the Formulae of the Civil Law
(Jus Civile) 2, probably preceded by certain explanatory headings, but
by no edict ; for the Praetor did not create the rulings on which
these civil actions and formulae were based. But it contained
as well the Formulae which were the creation of him and his pre-
decessors— the Formulae which were the product of what was known
as 'Magistrate's Law' (Jus Honorarium); and each of these Formulae
was no doubt preceded, at least eventually, by the Edictum or ruling
in law, which might have grown out of the Formula, but finally
served as its basis and justification. Thus the edictal part of the
Album was really a series of separate Edicta, each edict being
followed by its Formula ; it was regarded as being a supplement to
that portion which specified the Actions of Civil Law ; and it really
had this character of being a mere supplement in so far as 'honorary'
actions were seldom granted where a 'civil' action would have
sufficed. But its supplementary character was of a very far-reaching
kind. Thus the edicts might take cognizance of cases not provided
for by the civil law at all, they might replace the mechanism pro-
vided by the civil law for attaining a legal end, and they might alter
the character of the end itself. All these functions are summed up
by Papinian when he says that the work of the Jus Praetorium was
'to assist, to supplement, to correct the civil law for the sake of
1 See Wlassak, Edict und Klageform. 2 P. xl.
THE EDICTA PEKPETUA xxxiii
public utility1.' The edict of the Praetor Peregrinus was necessarily
still more of a substitute for the civil law than that of the Praetor
Urbanus. For, since the Legis Actiones could not (at least in many
cases) be employed by Peregrini 2, he was forced to invent equiva-
lents for these forms of action.
The third Edictum Perpetuum which was valid in Eome was
that of the Curule Aediles3. It was of no great content, since it
was concerned exclusively with the jurisdiction over the market, and
the control of public sites — a jurisdiction and control which were
possessed by these magistrates. For an edict in any way com-
parable to those of the Praetors we must turn to the provinces.
Here the governors (whether Proconsuls or Propraetors) issued
notices of their intentions with respect to jurisdiction, similar to
those of the Praetors at Eome as regards their permanent character
and the possibility of their transmission, but peculiarly applicable to
the particular governor's special sphere of administration. A special
edict was issued for each separate province (thus we read of an
Edictum Siciliense) * ; but this special character did not prevent
certain inter-relations between the edicts of separate provinces. We
know that the Provincial Edict might be prepared at Rome, before
the governor went to his province 5 ; and although the man who pre-
pared it (of course, with the assistance of professional lawyers), tried
to model his rules as closely as possible on those of his predecessor
in the province to which he was going, yet he might borrow im-
provements which had been initiated by the late governor of some
other province. Again, the same man might pass from one province
to another, and, much as the circumstances of the separate spheres
of government differed from one another, it is inconceivable that he
should not have carried some of his favourite rules of procedure with
him. A general conception of what a Provincial Edict should be
like, must have grown up ; the differences between the edicts being
probably those of matter rather than of form — the matter being
determined by the local customary law of the subject peoples, which
Eome rigidly respected. Where there were striking differences of
form, these must have been mainly due to the varieties of rights
granted by the Charters of the different provinces (Leges Pro-
vinciarum). It is obvious that, where much was granted by Charter,
little was left to the discretion of the governor. Where the Charter
granted only a few elementary rights, he had a much freer hand.
1 ' Adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem
publicam ' (Papin. in Dig. 1. 1. 7. 1).
2 It has sometimes been thought that Peregrini were wholly excluded from
the use of the Legis Actio. See Girard, Manuel, p. 110.
3 Dig. 21. 1 ; Cic. de Off. iii. 17. 71 ; Gell. iv. 2.
4 Cic. in Verr. i. 45. 117. 5 Cic. ad Fam. iii. 8. 4.
xxxiv HISTORICAL INTRODUCTION
One important point in which the governor of a province differed
from a Praetor at Rome, was that he was an administrative as well
as a judicial official. Hence the Provincial Edict had to contain
a good many rules of administrative law which were not to be
found in its counterpart at Konie. This portion of the edict spoke
about the financial relations of the states of the province to the
Roman government and to its agents, and stated the rules which
regulated the relations of the tax-gatherers (Publicani) to the tax-
payers. The rest of the edict which took a definite shape, covered
the procedure which the governor promised to apply for the recovery
of certain rights by individuals — rights such as those entailed in in-
heritance or the seizure of a debtor's goods. These rules were based
on those of Roman law; but they were mere outlines capable of
adaptation to the local customs of the subject states. But there was,
at least in certain provinces, a portion of the edict, still dealing with
the rights of individuals, which assumed no definite shape. There
were points on which the governor did not care to frame rules until
he knew the emergencies which he would have to meet. He was
content (at least Cicero was, when governor of Cilicia) with pro-
mising that, in issuing decrees on such points, he would conform to
the principles of the urban edicts 1.
§ 12. The debts which this development of law owed to the
Italian and provincial world.
If we ask what was the great motive power which lay behind
this development of law through interpretation by the magistrate,
we shall find it to consist, partly in contact with foreign peoples ;
partly (although probably in a less degree) in the new educational
influences which were moulding the lives of the Roman nobles.
The tendency to experiment and adaptation, to a disbelief in any-
thing fixed and rigid, is thoroughly Roman ; but external circum-
stances were very largely responsible for the particular lines on
which this tendency was to move. The legal consequence of contact
with foreign races is summed up in the phrase Jus Gentium. The
word ' Gentes ' in this collocation means ' the world - ' ; and it is
possible that, when the expression Jus Gentium was first formed,
1 Cicero thus sketches the contents of the whole edict which he published as
governor of Cilicia (ad Att. vi. 1. 15) : — ' Unum (genus) est provinciale, in quo est
de rationibus civitatum, de aere alieno, de usura, de syngraphis ; in eodem omnia
de publicanis. Alterum, quod sine edicto satis commode transigi non potest, de
hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis :
quae ex edicto et postulari et fieri solent. Tertium, de reliquo jure dicundo
afpatpov reliqui. Dixi me de eo genere mea decreta ad edicta urbana
accommodaturum.'
2 Clark, Practical Jurisprudence, p. 354. On the content of the Jus Gentium see
Nettleship, Contributions to Latin Lexicography, p. 503 ; Mommsen, Staatsr. iii, p. 604.
THE JUS GENTIUM xxxv
Rome regarded herself as rather outside this world whose customs
she was contemplating, although even her earliest practice showed
an inner conviction that she was a very integral part of it indeed.
The moment that she began to trade with the foreigner, whether in
Italy, Sicily, or Africa, she must have seen that her own Jus Civile
was an impossible basis for trading relations. If the Eoman had
no liking to submit to the intricacies of the law of some other state,
the foreign trader had equally little inclination to conform to the
tedious formalities of Eoman law. Some common ground had to be
discovered as the basis for a common court, which might adjudicate
on the claims of Private International Law. This common ground
was found in the Jus Gentium ; the common court was that of the
Eecuperatores of early times *. The history of the Praetorship leads
us to think that the Jus Gentium must have begun to exercise
a modifying influence on Eoman law long before the middle of the
third century B. c. ; for we have seen that for more than 120 years
a single Praetor administered justice both to Gives and Peregrini 2.
A single magistrate therefore published and dealt with two distinct
systems of law. But it would seem to be impossible that he could
have kept the two absolutely distinct, especially when the simplicity
and universality of the Jus Gentium stood in marked contrast to the
complexity and singularity of the Jus Civile. The rigidity of the
forms of Eoman law may have been shaken even at this early period.
But when a second Praetor was appointed to frame a special edict
for Peregrini, the Jus Gentium must have found a still more complete
and systematic expression. The procedure by which the legal
claims of aliens were asserted must have been more fully elaborated.
This was the procedure by Formula, which was to furnish the proto-
type for the method adopted by the Praetor Urbanus, and to replace
the older procedure by Legis Actio in most of the Eoman courts of
law. Nor can we ignore the influence of the Edictum Provinciale,
although this came later and at a time when the typical elements in
Eoman procedure had been fixed. Eome gained some ideas from
the Hellenised East, as in early days she had gained some from
Magna Graecia. It was probably from contact with the East that
she gained the knowledge of such simple forms of written agree-
ment as Syngrapha and Chirographa, and that she acquired her
theory of Mortgage (Hypotheca).
1 Festus, p. 274 : ' Keciperatio est, ut ait (Callus Aelius, cum inter populum et
reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores
reddantur res reciperenturque, resque privatas inter se persequantur.'
2 P. xxxi.
xxxvi HISTORICAL INTRODUCTION
§ 13. The idea of the Law of Nature ; its influence
on Slavery.
The Jus Gentium could not pass from being a mere fact to being
an ideal without gaining some theoretical justification for its existence
and acceptance. This justification was found in the idea that it was
a product of the Law of Nature. It is not improbable that the
superior ' naturalness ' of the Jus Gentium to the Jus Civile had
begun to appeal to the Eomans long before they had begun to be
affected by Greek philosophic thought ; for we know the effect which
was produced on the minds of the Greeks themselves by their early
contact with foreign civilizations. They rapidly drew the conclusion
that what was common to various countries existed by nature (<£tio-«),
what was peculiar to a country existed by convention (v6(up) • and
the KOIVOS vofjios l or TO (j)variKov 8tK<uoi> 2 of the Greeks is practically
identical with the Jus Gentium of the Eomans. Even to the
primitive mind the universality of an institution implies its natural-
ness. But it is very probable that the Stoic conception of Nature
did, to the Roman mind, complete the train of thought and give
a scientific stability to a vague impression. It was not, indeed,
possible to identify the Jus Gentium with the Lex Naturae ; for a
Jus cannot be the same as a Lex. But it might be regarded as the
product of that Lex, as its concrete expression in human society.
The immediate product, however, of the Lex Naturae is the Jus
Naturale. The Jus Gentium tended, therefore, to be identified
with the Jus Naturale ; and the identification seems to be complete
except in one important point. According to the view finally adopted
by the jurists, the Jus Naturale implies personal freedom ; for all
men are born free in a state of nature s. But the Jus Gentium (the
law of the civilized world) admits the institution of Slavery. In
this point, therefore, the two are in conflict, and the Jus Naturale
presents an even higher ideal of society than the Jus Gentium. The
relation between the three types of Jus, known to the theory of
Roman jurisprudence, may be expressed by saying that the Jus
Civile is the Right of man as a member of a state, the Jus Gentium
the Right of the free man, the Jus Naturale the Right of man 4.
The appeal to Nature on behalf of the slave is an index of the
part which he was to play in the development of Roman law.
Roman slavery cannot be judged solely either by the dismal picture
1 Arist. Ehet, i. 13. a Arist. Eth. v. 7.
3 ' Cum jure natural! omnes liberi nascerentur ' (Ulpian in Dig. 1. 1. 4).
* See Muirhead, Historical Introduction to the Private Law of Rome, p. 281 : ' While
the jus civile studied the interests only of citizens, and the jus gentium those of
freemen irrespective of nationality, the law of nature had theoretically a wider
range and took all mankind within its purview.' Compare Carlyle, Mediaeval
Political Theory in the West, ch. 3 (' The Theory of the Law of Nature ').
THEORY OF THE LAW OF NATURE xxxvii
presented by the plantation system, or by the legal theory that the
slave was a mere Thing (Res), a chattel, not a person. We must
remember that the slave, often of an intelligence and culture superior
to those of his master, and gifted with the practical genius and the
capacity for detail characteristic of the Greek, was frequently an
active man of business. We must remember too that the very fact
that he was a chattel might be employed by the law as the basis for
the theory that he was, for this very reason, an excellent Instrument
of Acquisition. So essential was he to his master in his capacity of
agent that the law was forced to recognize that he could be a party
to an obligation. The obligation, it is true, could not be called
legal ; it was only natural (Naturalis obligatio) ! ; but still it was an
obligation that could benefit the master, without making that master's
condition worse2. It was necessary, however, to protect other
parties to these contracts ; and the Praetor gradually created a series
of quasi-liabilities for the master of the trading slave. Such liabilities
are expressed in the actions Quod Jussu, Tributoria, De Peculio, De
in Rem Verso 3. They were created in the interest of the master as
well as in that of the other party to the contract ; for without these
guarantees slave-agency would have become impossible. In the
history of agency the slave plays a distinguished part ; and the part
that he plays is formally justified by the view that he is the
possessor of Natural Rights.
§ 14. Interpretation by the jurisconsults.
All these new influences on Roman law, although they found their
most marked expression in the edicts of the magistrates, were also
absorbed by that Professional Jurisprudence which gives us the
other aspect of the science of Interpretation. It may have been
the more important aspect ; for the teaching of the schools, and the
advice of jurisconsults, no doubt did much to stimulate and guide
the activity of the magistrates. We are told that the influence of
skilled lawyers was for a very long time represented by the College
of Pontifices. Even after the publication of the Twelve Tables and
the revelation of the forms of Action (448, 304 B.C.), and during the
period when secular was becoming more and more divorced from
religious law, the knowledge of jurisprudence was, in virtue chiefly
of the familiar fact that professions once associated are not easily
separated, exhibited mainly in the person of the Pontifex Maximus ;
1 Ulpian in Dig. 44. 7. 14 : ' Servi ... ex contractibus . . . civiliter . . . non
obligantur ; sed naturaliter et obligantur et obligant.'
a ' Melior condicio nostra per servos fieri potest, deterior fieri non potest '
(Gaius in Dig. 50. 17. 133).
3 Gaius, iv. G9--74 ; Justin. Inst. iv. 7.
xxxviii HISTORICAL INTRODUCTION
and the men who held this office still furnished for centuries the
leading names to Roman jurisprudence. At first the science was
imparted with an air of mystery ; the advice was occasional and
elicited only by special request. But finally the profession of law
on the part of the Pontiffs became more open and more systematic.
The first of these who taught the science publicly is said to have
been Tiberius Coruncanius 1 (circa 280 B.C.), who was also the first
plebeian Pontifex Maximus. Lastly, the stage of written com-
mentaries was reached. These commentaries were stimulated by
the increasing difficulty of interpreting the language and meaning
of the Twelve Tables. The earliest commentator on this code who
is known to us, was Sextus Aelius Paetus, consul in 198 and censor
in 193 B.C. He busied himself with the interpretation of the legal
difficulties connected with the Tables, and published a work called
Tripertita, which gave in three divisions the text of the Tables, an
explanation of each ordinance, and the form of action applicable to
the cases which these ordinances raised 2. His later contemporary,
Acilius, seems also to have been a legal commentator s. An ex-
planation of the obsolete language of the Tables was, so far as we
know, first attempted by the great philologist Lucius Aelius Stilo
Praeconinus, who was born about 154 B.C.* One of the results of
the work of these commentators was that the text of the Tables, as
it appeared in their editions, became the recognized, and in fact the
only, text for all subsequent ages ; for it seems quite clear that the
later commentators, as for instance Gaius, had no knowledge of any
antique copy of the Tables, engraved on metal and posted up in
some public place 6. But there was another reason why a knowledge
of the Tables, in their original form, was becoming decadent even
during the period of the later Eepublic. The Praetor's Edict, as
a living source of law, was superseding the ancient Code. Juristic
investigation was grappling with present problems and did not care
to concern itself with the antique. The Tables had been explained ;
now they were to be expanded. But the expansion came with the
edict, and with the creative jurisprudence which was a product of
the new Greek culture and the extension of the Roman Empire.
The founders of this scientific jurisprudence, whose labours were to
be perpetuated by the lawyers of the Principate, were Marcus Junius
Brutus, Marcus6 Manilius and Publius Mucius Scaevola, all of whom
1 Pompon, in Dig. 1. 2. 2. 38.
2 Pompon. 1. c. ; cf. Cic. de Leg. ii. 23. 59 ; de Or. i. 56. 240 ; Brut. 20. 78 ; de Rep.
i. 18. 30.
3 Cic. de Leg. ii. 23. 59 ; de Amic. 2. 6. He is called Atilius by Pomponius (I. c.).
See Scholl, Legis duodecim tabularum reliquiae, p. 25.
4 Teuffel-Schwabe, GeschicMe der rbmischen Litteratur, § 125 ; SchOll, op. cit. p. 26.
s Scholl, op. cit. pp. 11, 15. 6 Sometimes written ' Manius.'
JURISCONSULTS OF THE REPUBLIC xxxix
flourished about the middle of the second century B. c. They were
followed by a long line of distinguished successors to the close of
the Kepublic 1. The study of law was becoming professional, but it
was not confined to a body of men who made jurisprudence the sole
business of their lives 2. The knowledge and exposition of law was
an incident in the career of some of the greatest statesmen of the
day. It may have been their ruling, but it was by no means their
sole interest ; and sometimes the fruitful experience of a lifetime
spent in an active forensic and political career was given to admiring
students during the repose which marked the closing years of the
statesman's life3. The rewards of the profession were purely
honorary ; the only payment was repute, gratitude, or political sup-
port ; and the practical utility of the jurists was as much valued as
their theoretical knowledge. They pleaded or gave advice to pleaders ;
they gave a scientific precision to the formulae of legal business ; and
they returned replies (responsa) to the questions of litigants, magis-
trates, or judices on legal points which arose whether before or in
the course of the hearing of a case 4. It was through these replies,
which were given sometimes in private, sometimes in the Forum 5,
that the jurisconsults became great oral and literary teachers. The
replies were sometimes given in writing 6 ; but, even when verbal,
were often collected into books ; and the audience which received
them was by no means confined to those who were primarily in-
terested in the answers. The young were admitted to the consulta-
tions 7, and the consultation often closed with a disputation 8. This
practice led eventually to systematic teaching ; disciples attached
themselves to a particular exponent of law, who gave some a pre-
liminary training and directed others in a course of study that was
more advanced 9. In no respect was this system of education re-
gulated by the State. No teacher was more authentic than another.
1 See Roby, Introduction to the Study of Justinian's Digest, pp. 95-124.
a On the characteristics of the study of law during this period see Kriiger,
Oeschichte der Quellen und Litteratur des romischen Eechts, pp. 48 foil.
3 Cic. de Or. i. 45. 199-200, ' Quid est enim praeclarius, quam honoribus et rei
publicae muneribus perfunctum senem posse suo jure dicere idem, quod apud
Ennium dicat ille Pythius Apollo, se esse eum, unde sibi, si non populi et reges,
at omnes sui cives consilium expetant . . . Est enim sine dubio domus juris-
consulti totius oraculum civitatis.'
* These three functions are summed up by Cicero in the words agere, cavere,
respondere. See Cic. de Or. i. 48. 212 : ' Sin autem quaereretur, quisnam juris-
consultus vere nominaretur, eum dicerem, qui legum et consuetudinis ejus, qua
pi'ivati in civitate uterentur, et ad respondendum et ad agendum et ad cavendum
peritus esset.' Cf. Kriiger, op. cit. p. 49.
5 Cic. de Or. iii. 33. 133.
6 Cic. pro Mur. 9. 19. Cicero here describes the ' urbanam militiam respon-
dendi, scribendi, cavendi.' The interpretation that I have given to scribere is
that of Kriiger, op. cit. p. 50. Cf. Cic. Top. i. 1. 4.
7 Cic. Orator, 41. 142, 42. 143.
' Cic. Top. 14, 56. » Kriiger, op. cit. p. 51.
3d HISTORICAL INTRODUCTION
Controversy grew and flourished1. The only proof of the validity
of an opinion was its acceptance by a court. But even this was but
a slender proof; for different Praetors or Judices might be under the
sway of different jurists. It required a single superior court and a
single controlling authority (both of which were found in the Princi-
pate) to guide the stream of legal opinion into narrower and more
certain channels.
Amidst this stream of interpretation we discern one attempt to
give a fixity to at least a part of Eoman law. Ofilius, a Koman
knight of the period of Cicero and Caesar, was the first to reduce
the Praetor's Edict to some kind of system2. It is probable that
a still greater work of revision was at one time projected for this
jurist ; for we are told that Caesar, amidst his ambitious schemes
for the regeneration of the Roman world, conceived the idea of
making a digest of the Roman law3. Had he lived to carry out
this scheme, it is probable that Ofilius would have been entrusted
with the work.
§ 15. Reforms in Procedure effected during the later period
of the Republic.
The progress effected during this period in the theory of law was
accompanied by a great reform in procedure. From about 150 B. c.
the process both of the civil and criminal courts began to assume
a form which was final for the period of the Republic, and which
was supplemented, but not altered, during the greater part of the
period of the Principate *. In the domain of Civil Procedure, a Lex
Aebutia gave some kind of formal sanction to the practice by which
the Praetor tended to substitute the simpler Formula for the more
complex Legis Actio 8. The Formula had perhaps first been employed
in the statement of cases for Peregrini. Its utility commended its
use for cases in which Roman citizens alone were involved. The
Praetor Urbanus employed it for his honorary jurisdiction ; it was
then transferred (doubtless by the Lex Aebutia) to the civil law as
an alternative, in most cases, to the Legis Actio. We cannot say in
1 Cic. de Or. i. 38. 173 ; 57. 241, 242 ; pro Mur. 12. 27 ; 13. 28.
2 Pompon in Dig. 1. 2. 2. 44 : ' De jurisdictione idem (Ofilius) edictum praetoris
primus diligenter composuit.'
3 Suet. JwZ. 44. Ofilius' intimacy with Caesar is noticed by Pomponius (Dig. I. c.).
4 The civil procedure of the judicia ordinaria survived the Principate. When
the criminal procedure of the quaestiones perpetuae disappeared is unknown.
Their disappearance has been placed as early as the close of the first century A. D.
(Geib, Criminalprocess, pp. 392-397). But it has been thought that Dio Cassius
(lii. 20, 21) implies their existence in his own time, at the beginning of the
third century A. D.
4 Gaius, iv. 30 ; Gell. xvi. 10. 8. The date of the law is unknown, but is not
likely to be earlier than 150 B. c. Girard (Manuel, p. 987) finds indications for
placing it between 149 and 126 B. c.
REFORMS IN PROCEDURE xli
what form the alternative was presented. We know that the
law must have exempted certain kinds of jurisdiction from the
Formula — the jurisdiction, for instance, of the Centumviral and
Decemviral courts. But it may have allowed the Praetor to
substitute the one procedure for the other in most spheres of civil
jurisdiction ; and, where the Praetor still permitted the Legis Actio
and the Formula to stand side by side in his Album, it may have
given the litigants a choice between the two. The two methods of
procedure still exist side by side in Cicero's time ; but the formulary
procedure is demonstrably the more general of the two.
About the time when this reform was being effected, an attempt
was made to create a method of criminal procedure, simpler and
more effective than that of a trial before the People. The type
on which the new criminal courts were constituted was furnished in
the main by Civil Procedure. Cases of extortion (Repetundarum),
in which compensation was demanded for a delict, were first tried
before a Praetor and Recuperatores. This was a mere provisional
arrangement initiated by the Senate for the benefit of the provincials l.
But the system, or one closely modelled on it, was perpetuated by
the Lex Calpurnia Repetundarum of 1 49 B. c. 2, and gradually these
recuperatorial boards grew into great panels of Judices, the qualifica-
tions for the jurors being specified by judiciary laws (Leges Judi-
ciariae). Finally, almost the whole sphere of the criminal law was
embraced by a series of enactments which created standing courts
(Quaestiones Perpetuae, or Judicia Publica), each for the trial of
a special offence or a group of related crimes. All of these courts
followed the same model. In each a President (Quaesitor), who was
generally a Praetor, sat with a bench of Judices who pronounced
a penalty fixed by the law which had constituted the court. From
the judgment of these Judices there was no appeal to the People.
§ 16. The Creation of the Principate — Changes in the
Sources of Law.
The change from the Republic to the Principate introduced no
very sudden alterations in the sources of law or the methods of
procedure. Both, as we shall see, were supplemented by new
creations ; but up to the time of Gaius it was possible to appeal to
the Republican system as the one that underlay the legal life and
the judicial organization of Rome3. All that was added by the
1 Liv. xliii. 2. a Cic. Brut. 27. 106 ; de Off. ii. 21. 75.
3 Yet it is to be observed that Gaius, in his statement of the sources of law
(i. 2), puts those which were antiquated in his time (Lex and Plebiscitum) on
the same level as those which were living. The statement is juristically correct,
in so far as the body of Koman law in his time had sprung from all these
xlii HISTORICAL INTRODUCTION
Principate was in the nature of an excrescence — one that was
probably healthy in its effects, in spite of the fact that it does seem
to have limited to a certain extent the creative activities of juristic
thought. The birth of the Principate was not conditioned by strictly
legal necessities. There seems to have been little sense that a single
controlling force was needed for the guidance of the law of Rome,
Italy, and the provinces. The justification for the Principate was
found in the fact that a single controlling power was necessary for
the command of the army and the routine administration of the
provinces. But it was impossible to create such a power without
bringing it into some contact with every department of the State.
The guidance of legislation and judicature by an individual will was
a necessary outcome of the new order of things ; and it is possible
that this guidance was needed. There is a stage in the history of
law where liberty of interpretation may lead to perplexing un-
certainty, and there is a stage in the history of any national judicial
organization where certain radical methods are necessary to adapt
it to new needs. The Principate gave a definiteness to law, but
a definiteness that was in no sense illiberal. On the contrary, it
prevented law from being narrowly Roman as effectually as it
checked it from recklessly absorbing foreign elements. It adapted
law to provincial needs by expanding, but not impairing, its national
character. At the same time it widened the scope of jurisdiction by
methods which we shall soon describe — methods which seem to have
increased the efficiency at least of the civil courts at Rome, and
which brought the provincial world into closer judicial relations
with the capital. The changes effected both in legislation and in
jurisdiction were gradual and progressive ; and, though they were
from a formal point of view initiated by the will of individual
monarchs, it is important to remember that, at Rome as elsewhere,
monarchical power is the outcome of the concurrence of many
individual wills. For the sake of convenience we are accustomed
to treat the Princeps as the chief source of law and the chief
influence on jurisdiction. Sometimes a purely personal power of
this type may have been realized for a while, although when so
realized it always had a flavour of tyranny1. But as a rule, when
we think of the Princeps as a source of law and justice, we should
be thinking of his judicial advisers and assessors. The trained
sources ; but the method of statement is likely to convey a false historical
implication. Cf. pp. xlv-xlviii.
1 We may instance the view of Caligula on the jus respondendi of the juris-
consults. Suetonius says (Calig. 34) ' De juris quoque consultis, quasi scientiae
eorum omnem usum aboliturus, saepe jactavit " se mehercule effectxirum ne
quid respondere possint praeter eum."' This was a desire that found no
fulfilment during the Principate.
THE PRINCIPATE xliii
jurist still plays a leading part in legal progress. His control of
the Princeps, and the Princeps' control of him, must both be taken
into account, although the actual extent of the respective influences —
of the administrator over the jurist and of the jurist over the adminis-
trator— can never be determined for any given act or for any given
moment of time.
A division of power of this type is perhaps common to all
monarchies. But in the Roman Principate, which was not tech-
nically a monarchy, we find it expressed in yet another way — a way
which is of more importance theoretically, although perhaps of less
practical import. It is expressed in the form that the Princeps is
merely the ' extraordinary magistrate ' of a Republican Constitution.
By an ' extraordinary magistracy ' is meant a magistracy formed by
an accumulation of functions, each of which is usually exercised by
a particular magistrate. The chief powers with which the Princeps
was invested were the Proconsulare Imperium conferred by the
Senate, and the Tribunicia Potestas conferred on a recommendation
of the Senate in a formal meeting of the People. The Proconsulare
Imperium was technically valid only outside the limits of Italy ; but,
as it was absolutely necessary that the Princeps should possess
Imperium within Rome, he was specially exempted from losing his
Imperium by his presence within the city. The effect of this
exemption probably was to create for the Princeps a kind of consular
Imperium in Rome and Italy. But even this device was not sufficient
to secure for him the authority which he required as a moderator of
the whole State. The Proconsulare Imperium and the Tribunicia
Potestas required to be supplemented by a number of separate powers
.conferred by special grants. These grants must originally have been
made by special laws and decrees of the Senate that were passed at
various times ; but the practice seems soon to have been adopted of
embodying them in a single enactment, which was submitted to the
formal assent of the People at the time when the Proconsulare
Imperium and the Tribunicia Potestas were conferred. A fragment
of such an enactment is the extant Lex or Senatusconsultum which
enumerates powers conferred on the Emperor Vespasian at his
accession1. The rights of the Princeps enumerated in this document
are of a very heterogeneous kind — they include the powers of making
treaties, extending the pomerium of the city, commending candidates
1 The document is to be found in the Corpus Inscriptionum Latinarum, vi.
n. 930, and in Bruns, Fontes Juris Romani Antiqui, v. 19. It describes itself as
a law (1. 34 'Si quis hujusce legis ergo,' &c. ), and is generally known as the
Lex de imperio Vespasiani. But its wording bears more analogy to that of
a Senatusconsultum. It seems to be a decree of the Senate which is intended
to be submitted to the People for their formal assent. See Mommsen, Staatsr. ii,
p. 878.
da
xliv HISTORICAL INTRODUCTION
for office, and issuing edicts as interpretations of law, human and
divine ; and, important as they are, they have no direct connexion
with either the Proconsulare Imperium or the Tribunicia Potestas.
Some of the most imposing powers of the Princeps were dependent
on neither of these two sources, but were contained only in this
general Lex ; and, as fresh prerogatives were added to the Principate,
the Lex would grow in bulk and importance. Some development of
this kind may account for the fact that Gaius and Ulpian both speak
of the Princeps receiving his Imperium through a Lex \ Such an
expression could not have been used of the early Principes ; for the
Proconsulare Imperium was received through a decree of the Senate ;
but it is possible that in the course of time the general Lex, as
enumerating the majority of the prerogatives of the Princeps, came
to overshadow the other sources of his authority.
Since the authority of the Princeps was built up in this gradual
and unsystematic way, it is quite impossible for the modern inquirer
to determine with precision the sources of the exercise of his different
powers. But a rough estimate may be made of five distinct kinds
of prerogative and of the activities flowing from each. (1) With the
Imperium were connected the control of the army and the provinces,
the right of declaring war and of making treaties, the power of
conferring Roman citizenship or Latin rights, civil and criminal
jurisdiction, and the general power of legal interpretation. (2) The
Tribunician Power, besides making the Princeps sacrosanct, gave
him the right, exercised during the earlier period of the Principate
but afterwards neglected, of initiating measures in the Assembly of
the Plebs, and also the right of transacting business with the Senate,
although this second right was extended by special grants. The
power of veto, inherent in the Tribunicia Potestas, gave the Princeps
a control over all the other magistrates of the State, enabled him to
exercise over the jurisdiction of the Senate a power akin to that of
pardon, and probably formed the basis of much of his appellate
jurisdiction. (3) Two of the Principes, Claudius and Vespasian,
were invested with the temporary office of censor, and Domitian
declared himself censor for life. His example was not followed by
succeeding rulers ; but the most important of the functions of the
censors — the revision of the lists of Senators and Knights — continued
to be a part of the admitted prerogatives of the Princeps. Akin to
this right was that of creating Patricians, which had been conferred
1 Gaius, i. 5; Ulpian in Dig. 1. 4. 1: 'Quod principi placuit, legis habet
vigorem ; utpote cum. lege regia, quae de iinperio ejus lata est, populus ei et in
eum omne suum imperium et potestatem conferat.' It has been questioned
whether the expression lex regia was in vogue even in the time of Ulpian, and it
may be an interpolation. The expression is found in Justinian (Cod. 1. 17. 1. 7).
See Mommsen, Staatsr. ii, pp. 876, 877.
LEGISLATION DURING THE PRINCIPATE xlv
by law on Caesar and Augustus, had been exercised by Claudius and
Vespasian as censors, and finally became a right inherent in the
Principate itself. (4) The Princeps, besides being a member of all
the great religious colleges, was, as Pontifex Maximus, the official
head of the state-religion, and was invested by law with the power of
executing ordinances which were to the interest of the religious life
of the community 1. (5) Supplementary powers, which cannot be
described by a common name or connected with any definite office,
were granted to the Princeps. Some of these were means by which
his control over the magistrates and the Senate was increased. Such
were the rights of securing the election of certain candidates for
office by means of a recommendation (Commendatio), and of exercising
powers in relation to the Senate superior to those possessed by the
other magistrates.
An authority thus endowed could not fail to exercise a strong
directing influence on the sources of law and the methods of
procedure. The influence asserted itself from the first ; yet for at
least two centuries there was always a formal, and sometimes a real
recognition of the theory on which the Principate was based — the
theory of a dual control exercised by the Princeps on the one hand,
by the usual organs of the Kepublic on the other. The chief organ
by which the Kepublic was represented was now no longer the
People, but the Senate ; and the dual sovereignty — or ' Dyarchy,'
as it has been called — can be illustrated chiefly by the division of
authority between the Princeps and the Senate.
As regards the sources of law, even the utterances of the People
were for some time elicited. Leges and Plebiscita — specimens of
which are to be found in the Leges Juliae of Augustus, the Lex
Aelia Sentia belonging to the reign of the same monarch, the Lex
Junia Norbana of the reign of Tiberius, the Leges Claudiae of the
Emperor Claudius — continued to be passed during the early
Principate. The last trace of legislation belongs to the reign of
Nerva (96-98 A.D.)2.
Even before legislative power had been surrendered by the Comitia,
it had begun to pass to the Senate ; and down to the third century
A.D., such general ordinances as tended to alter the fundamental
legal relations of Eoman citizens to one another were generally
expressed in the form of Senatusconsulta. The Senatusconsultum
was a true source of the Jus Civile. Yet it did not attain the formal
structure, or always adopt the imperative utterance, of a law. Its
utterances are often couched in an advisory form3, as though the
1 Lex de Imp. Vesp. 1. 17.
2 Dig. 47. 21. 3. 1.
3 Thus the S. C. Vdkianum begins : ' Quod Marcus Silanus et Velleus Tutor
xlvi HISTORICAL INTRODUCTION
Senate of this period, like that of the Kepublic, were merely giving
counsel to a magistrate. Gaius attributes to these decrees 'the
binding force of law ' ; and it does not seem that the early doubts
as to whether the Senate could pass ordinances immediately binding
on the community l survived the beginning of the Principate.
The Praetor's edict still continued to be issued ; nor are we told
that the edictal power was in any way infringed during the early
Principate. But there are two considerations which would lead us
to conclude that it was seriously weakened. The first is based on
the fact that edictal power in the highest degree was conferred by
law on the Princeps himself 2 ; and the existence of two interpreters
of the civil law possessing equal authority is almost inconceivable.
The second consideration rests on the probability that the Praetor's
rulings in detail were subject to the veto of the Princeps. A new
ruling was often the basis for a new formula and a new edict, and
if the first of these was inhibited, its successive developments could
not be realized. Progressive legislation was effected elsewhere, in
decrees of the Senate and in the imperial constitutions ; and the
final sign that the creative work of the Praetors was a thing of the
past was given when, in the reign of Hadrian (117-138 A.D.), and
therefore probably in the lifetime of Gaius, the work which Ofilius
had begun s was perfected by the jurist Salvius Julianus. He
reduced the edict to a fixed and definite system 4 ; and from this
time onward the Edictum Perpetuum was, in its essential features,
unalterable. Absolute validity was given to the new redaction
by a Senatusconsultum introduced by a speech from the Emperor
Hadrian, who declared that any new point, not contemplated in
the edict, should be decided by analogy with it6. It is probable
that such new points were still mentioned in successive edicts ; for
it is certain that the edict still continued to be issued annually.
The work of Julian could, therefore, never have been meant to be
unalterable in a literal sense. Such invariability would indeed have
been impossible ; for, though changes in law were now beginning to
be made chiefly by ordinances of the emperor, yet these very changes
would neeer jitate corresponding changes in the details of the edict.
consules verba fecerunt . . . quid de ea re fieri oportet, de ea re ita censuere.'
See Kriiger, op. cit. p. 82.
1 Gpjius, i. 4. Cf. Ulpian in Dig. 1. 3. 9 ' Non ambigitur senatum jus facere
posse. Papinian (Dig. 1. 1. 7) recognizes senatusconsulta as a source of jus.
2 Lex de Imp. Vesp. 1. 17 ' Utique quaecunque ex usu rei publicae . . . censebit,
ei agere facere jus potestasque sit.'
3 P. xl.
4 Victor, Caes. 19 ' Primus edictum quod varie inconditeque a praetoribus
promebatur in ordinem composuit.' Eutrop. viii. 17 ' Perpetuum conposuit
edictum.'
8 Cod. 1. 17. 2. 18 ; Constitution At'Scwcw (prefixed to Digest), 18.
THE PKINCEPS AS A SOURCE OF LAW xlvii
The fixity of Julian's edict was to be found both in its structure and
in its leading principles ; in the order in which the rules of law
were marshalled and in the general significance of these rules. It
has been supposed that Julian's work was not confined to the edict
of the Praetor Urbanus, but that he dealt also with the edicts of the
Praetor Peregrinus and of the Curule Aediles J. He may have
treated these edicts separately ; but the three may have been
combined in a single comprehensive work which was spoken of as
'The Edict2.'
By the side of these sources of law which survived from the
Kepubtic stood the new authority, the Princeps. He was not
regarded as, in the strict sense, a legislative authority ; but he or his
advisers exercised a profound influence on the growth and structure
of law in virtue of his power of issuing Edicts, Decrees, Eescripts, and
Mandates. The Edictum of the Princeps was, like that of the
Praetor in the Kepublic, technically an interpretation of law, but, like
the Praetor, the Princeps could supplement and alter under the guise
of interpretation : and his creative power, as exercised by his edictal
authority, was very great. An edict of an emperor did not necessarily
bind his successors ; but, if it had been accepted as valid by a series
of emperors, it was considered to be a part of the law, and its
subsequent abandonment had apparently to be specified by some
definite act of repudiation 3. The Decretum was a judgment of the
Princeps as a court of justice ; and, unless it was rescinded in a
succeeding reign, its validity as a precedent seems to have been
unquestioned. The Rescriptum was technically an answer to a letter
by which the advice of the Princeps was sought ; but the word soon
came to be used for the Princeps' letter (Epistola) itself. It contained
instructions either on administrative or on judicial matters. In its
first capacity, it was addressed to some public official subordinate to
the emperor ; in its second, it was addressed either to the judge or to
the litigant. It was elicited either as an answer to the consultation
(Consultatio) of an official or a judge who hesitated as to his course of
procedure, or as a reply to a petition (Libellus, Supplicatio) of one of
the parties to a suit. The Rescript which dealt ^ith judicial
matters might settle a doubtful point of law by showing, or extending,
the application of an existing principle to a new case. The Rescript
was the most powerful instrument of law-making wielded by the
Princeps. The definiteness of its form gave the opinion an authority
1 We hear of the Edictum Aedilium in the Constitutions ' Omnem ' (4) and
AeSwKev (5) prefixed to the Digest.
2 It is possible that the common elements in the provincial edicts were
reduced to a system at this time. Cf. p. xxxiii.
3 Paulus (Dig. 28. 2. 26) uses the expression ' Jam sublato edicto divi August!,'
a phrase which suggests something more than mere neglect.
xlviii HISTORICAL INTRODUCTION
which, once accepted by a successor, could not easily be questioned ;
while the immense area over which these letters of advice were sent
kept the Princeps in touch with the whole provincial world, and
caused him to be regarded by the provincials as the greatest and
most authentic interpreter of law. The Edicts, Decrees, and Rescripts
came to be described by the collective name of ' Imperial Consti-
tutions ' (Constitutiones Principum), and by the time of Gaius they
were held to possess, in a uniform degree, 'the binding force of
law1.' On a lower level, with respect to legal validity, stood the
Mandatum. This was a general instruction given to subordinate
officials, for the most part to governors of provinces, and dealt
usually with administrative matters, although sometimes it had
reference to a point of law. Such mandates might be, and often
were, withdrawn by the Princeps who had issued them, or by his
successor. Hence it was impossible to attach perpetual validity to
their terms. But, when a mandate dealt with a precise point of law,
and was renewed by successive emperors, it must have acquired the
force of a Rescript 2.
§17. Changes in Procedure under the Principate.
The creation of the office of Princeps, and the extension of the
authority of the Senate, exercised an influence on jurisdiction as
well as on legislation. The two new features of the judicial system
were the growth of extraordinary jurisdiction and the growth of
Courts of Appeal. The name 'extraordinary' (extra ordinem) was
given to all jurisdiction other than that of the ordinary civil* and
criminal courts (Judicia Ordinaria) which had survived the Republic.
It often dealt with eases not fully provided for by these courts ; and
its chief characteristic was that the cognizance (Cognitio), both on the
question of law and on the question of fact, was undertaken solely by
the magistrate or by a delegate nominated by him (judex extra
ordinem datus)3. In civil matters, the Princeps sat as such an
extraordinary court, and either exercised, or delegated, jurisdiction
in matters such as Trust or Guardianship. He might take other
1 Gaius, i. 5. Cf. Ulpian in Dig. 1. 4. 1. 1 ' Quodcumque . . . imperator per
epistulam et subscriptionem statuit vel cognoscens decrevit . . . vel edicto
praecepit, legein esse constat. Haec sunt quas vulgo constitutiones appellamus.'
a Thus the soldier's testament was created by a series of mandates (Dig.
29. 1. 1).
3 Such a delegate might be given by the consuls when exercising extraordinary
jurisdiction (Gell. xii. 13. 1 ' Cum Romae a consulibus judex extra ordinem
datus pronuntiare . . . jussus essem '). .Such a judex represented the magistrate
more fully than the judex of ordinary jurisdiction. He was not tied down
within the limits of a formula.
NEW METHODS OF PROCEDUEE xlix
cases, if he willed ; but his jurisdiction was always voluntary ; and,
if he declined to act, the case went before the Praetor. In criminal
matters, two high courts of voluntary and extraordinary jurisdiction
were created — that of the Princeps and that of the Senate. The
Princeps might take any case, but often limited his intervention to
crimes committed by imperial servants or by officers of the army.
The jurisdiction of the Senate was especially concerned with offences
committed by members of the upper ranks of society, or with
crimes of a definitely political character.
The system of appeal introduced by the Principate was of a
complicated character, and many of its features are imperfectly
understood. It seems that, at Kome, the Princeps could in civil
matters veto, and perhaps alter, the decision of a Praetor, but could
not annul the verdict of a Judex, except by ordering a new trial l.
He could of course vary the decisions of his own delegates in matters
of extraordinary jurisdiction. In criminal matters the Princeps
does not seem to have had the power of altering the decisions of the
Quaestiones Perpetuae ; but he could probably order a new trial 2.
There was technically no right of appeal from the Senate to the
Princeps 3 ; but the Princeps could exercise what was practically a
power of pardon by vetoing the decisions of the Senate in virtue of
his Tribunicia Potestas. In the provincial world, the right of
appeal was at first regulated in accordance with the distinction
between Caesar's provinces and the provinces of the Roman people.
From Caesar's provinces the appeal lay to Caesar ; from the other
provinces it came to the Consuls and, at least if it was concerned
with a criminal matter, was by them transmitted to the Senate.
But we know that this system of dual jurisdiction was breaking
down even in the first century of the Principate, and that the
appellate jurisdiction of the Princeps was tending to encroach on
that of the Consuls and Senate 4. The extent to which it had broken
down in the time of Gaius is unknown. But we know that, by the
end of the second century A. D., the Princeps was the Court of
Appeal for the whole provincial world. For this purpose he was
usually represented by the Prefect of the Praetorian Guard.
1 This was done by the fiction of In integrum restitutio. Cf. Suet. Claud. 14
' (Claudius) iis, qui apud privates judices plus petendo formula excidissent,
restituit actiones.'
2 The Emperor Gordian is spoken of as -naKivZiKiav StSovs rots aS'ttcajs KaraKpiOtiai
(Herodian, vii. 6. 4).
3 Ulpian in Dig. 49. 2. 1. 2 ' Sciendum est appellari a senatu non posse
principem, idque oratione divi Hadriani effectum.' There can be little doubt
that the principle was confirmed, not created, by Hadrian.
* Nero at the beginning of his reign in 54 A. D. professed a desire to restore
the original principle (Tac. Ann. xiii. 4 ' Teneret antiqua munia senatus,
consulum tribunalibus Italia et publicae provinciae adsisterent ').
1 HISTORICAL INTRODUCTION
§ 18. The work of the Jurisconsults under the Principate.
The official organs which made Roman law were now, as under
the Republic, assisted by the unofficial or semi-official activity of the
jurisconsults. Some of these teachers were now given public recog-
nition as authoritative sources of law. We are told that Augustus
granted the right to certain jurisconsults to respond under imperial
authority ; and this practice was continued by his successors on the
throne. Amongst the earlier of these patented jurisconsults was
Masurius Sabinus, of the time of the Emperor Tiberius '. The
granting of this privilege did not diminish the activity of the
unpatented lawyers2, although it doubtless diminished their in-
fluence ; but it gave the response of its possessor as authoritative
a character as though it had proceeded from the emperor himself3.
The response was usually elicited by a party to the suit and presented
to the Judex 4. He was bound by the decision c ; but naturally only
on the assumption that the facts as stated in the petition which
elicited the Rescript were the facts as exhibited in the course of the
trial 6. It may have been understood that the opinion of only one
patented counsellor was to be sought in any single case ; for in the
early Principate there seems to have been no provision determining
the conduct of a Judex when the opinions of his advisers differed.
Later it must have been possible to elicit the opinion of several
patented jurists on a single issue ; for the Emperor Hadrian framed
the rule that, in the case of conflicting responses, a Judex should be
entitled to use his own discretion 7.
§ 19. Literary activity in the domain of. Law to the
time of Gaius.
The literary activity in the domain of law, during the period
which intervened between the accession of Augustus and the time
of Gaius, was of the most varied character8. Religious law (Jus
1 Pomponius in the Digest (1. 2. 48-50) says 'Massurius Sabinus (of the time
of Tiberius) in equestri ordine fuit et publice primus respondit '; but he also adds :
' Primus divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex
auctoritate ejus responderent.' To make the statements square with one
another, Mommsen would strike out the words 'fuit et' in the first paragraph,
as being the addition of an interpolator. The statement would then be that
Sabinus was the first patented jurisconsult of equestrian rank.
2 This seems shown by the story told by Pomponius in Dig. 1. 2. 2. 49.
3 Yet the response was not regarded as a delegation of the power of the
Princeps to issue Rescripts. It may, however, have formed the model for the
judicial Rescript. See Krxiger, op. cit. p. 110, note 5.
4 Not merely to the Judex privatus, but to the Judex extra ordinem datus, and
even to the magistrate who was judging.
5 Justin. Inst. i. 2. 8. 6 Kriiger. op. cit. p. 110. 7 Gaius, i. 7.
8 For a detailed description of this literature see Roby, Introduction to the Study
of Justinian's Digest, pp. 124-174.
THE INSTITUTES OF GAIUS li
Pontificium) attracted the attention of Capito. Labeo wrote on the
Twelve Tables. The Praetor's Edict was the subject of studies by
Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the
Curule Aediles was commented on by Caelius Sabinus. Salvius
Julianus, besides his redaction of the Edicts1, produced a work
known as Digesta, which perhaps assumed the form of detailed
explanations of points of law systematically arranged. Compre-
hensive works on the Civil Law were furnished by Masurius Sabinus
and Caius Cassius Longinus. Other jurists produced monographs on
special branches of law, as the younger Nerva on Usucapion, Pedius
on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote
commentaries on the works of their predecessors. It was thus that
Aristo dealt with Labeo, and Pomponius with Sabinus. Other
works took the form of Epistolae, which furnished opinions on
special cases which had been submitted to their author, and
collections of Problems (Quaestiones). Nor was history neglected.
There must have been much of it in Labeo's commentary on the
Twelve Tables ; and Pomponius wrote a Handbook (Enchiridion),
which contained a sketch of the legal history of Eome from the
earliest times.
§ 20. The Institutes of Gains ; their place in the Literature
of Law.
The Institutes of Gaius are a product of this activity ; for it is
necessary that a great deal of detailed and special work shall be
done in a science before a good handbook on the subject can be
written for the use of students. The name of Gaius's work does
not appear in the manuscript ; ' but 2 from the proem to Justinian's
Institutes appears to have been INSTITUTIONS, or to distinguish it
from the systems of rhetoric which also bore this name, INSTITU-
TIONES JURIS CIVILIS. From the way in which it is mentioned by
Justinian, we may infer that for 350 years the elite of the youth of
Eome were initiated in the mysteries of jurisprudence by the manual
of Gaius, much as English law students have for many years com-
menced their labours under the auspices of Blackstone. It is
probably in allusion to the familiarity of the Koman youth with
the writings of Gaius that Justinian repeatedly calls him (e. g. Inst.
proem. 6 ; Inst. 4, 18, 5 ; and in the Constitution prefixed to the
Digest, and addressed ad Antecessores, § 1), "our friend Gaius"
(.Gaius noster). The shortness of the time that sufficed Tribonian
and his colleagues for the composition of Justinian's Institutes
1 P. xlvii.
2 These passages in inverted commas are taken from Mr. Poste's preface to the
third edition of his work.
lii HISTORICAL INTRODUCTION
(apparently a few months towards the close of the three years
devoted to the compilation of the Digest, Inst. proem) is less
surprising when we see how closely Tribonian has followed the
arrangement of Gaius, and how largely, when no change of legisla-
tion prohibited, he has appropriated his very words.'
'Certain internal evidences fix the date at which portions of the
Institutions were composed. The Emperor Hadrian is spoken of
as departed or deceased (Divius) except in 1. § 47 and 2. § 57.
Antoninus Pius is sometimes (1. § 53, 1. § 102) named without this
epithet, but in 2. § 195 has the style of Divus. Marcus Aurelius
was probably named, 2. § 126, and the Institutions were probably
published before his death, for 2. § 177 contains no notice of a
constitution of his, recorded by Ulpian, that bears on the matter
in question. Paragraphs 3. § 24, 25, Would hardly have been
penned after the Sc. Orphitianunij A. D. 178, or the Sc. Tertullianum,
A. D. 158,' It has, however, been held that Gaius when he wrote
the Institutions was acquainted with the Sc. Tertullianum, and that
a mention of it occupied a gap in the manuscript which is found in
3. 33. See the commentary on this passage.
The discovery of the text of the Institutions was made in 1816.
In that year 'Niebuhr noticed in the library of the Cathedral Chapter
at Verona a manuscript in which certain compositions of Saint
Jerome had been written over some prior writings, which in certain
places had themselves been superposed on some still earlier in-
scription. In communication with Savigny, Niebuhr came to the
conclusion that the lowest or earliest inscription was an elementary
treatise on Bo man Law by Gaius, a treatise hitherto only known, or
principally known, to Roman lawyers by a barbarous epitome of its
contents inserted in the Code of Alaric II, King of the Visigoths
(§ 1,22, Comm.). The palimpsest or rewritten manuscript originally
contained 129 folios, three of which are now lost. One folio be-
longing to the Fourth Book (§ 136-§ 144), having been detached by
some accident from its fellows, had been published by Maffei in his
Historia Tcologica, A.D. 1740, and republished by Haubold in the
very year in which Niebuhr discovered the rest of the codex.'
' Each page of the MS. generally contains twenty-four lines, each
line thirty -nine letters ; but sometimes as many as forty-five. On
sixty pages, or about a fourth of the whole, the codex is doubly
palimpsest, i.e. there are three inscriptions on the parchment. About
a tenth of the whole is lost or completely illegible, but part of this
may be restored from Justinian's Institutes, or from other sources ;
accordingly, of the whole Institutions about one-thirteenth is wanting,
one half of which belongs to the Fourth Book.'
' From the style of the handwriting the MS. is judged to be older
THE LIFE AND WORKS OF GAIUS liii
than Justinian or the sixth century after Christ ; but probably did
not precede that monarch by a long interval.'
' In a year after Niebuhr's discovery the whole text of Gaius had
been copied out by Goeschen and Hollweg, who had been sent to
Verona for that purpose by the Prussian Royal Academy of Sciences,
and in 1820 the first edition was published. In 1874 Studemund
published an apograph or facsimile volume, the fruits of a new
examination of the Veronese MS.; and in 1877 Studemund, with
the assistance of Krueger, published a revised text of Gaius founded
on the apograph.'
' In the text of Gaius, the words or portions of words which are
purely conjectural are denoted by italics. The orthography of the
Veronese MS. is extremely inconstant. Some of these inconstancies
it will be seen are retained : e.g. the spelling oscillates between the
forms praegnas and praegnans, nanctus and nactus, erciscere and
herciscere, prendere and prehendere, diminuere and deminuere,
parentum and parentium, vulgo and volgo, apud and aput, sed and
set, proxumus and proximus, affeetus and adfectus, inponere and
imponere &c. Some irregularities likely to embarrass the reader, e. g.
the substitution of v for b in debitor and probare, the substitution
of b for v in servus and vitium, have been tacitly corrected. The
numeration of the paragraphs was introduced by Goeschen in his
first edition of Gaius, and for convenience of reference has been
retained by all subsequent editors. The rubrics or titles marking
the larger divisions of the subject, with the exception of a few at
the beginning, are not found in the Veronese MS. Those that are
found are supposed not to be the work of Gaius, but of a transcriber.
The remainder are partly taken from the corresponding sections of
Justinian's Institutes, partly invented or adopted from other editors.'
§ 21. The Life and Works of Gaius.
Of the life of Gaius we know little. Even his full name has been
lost ; for, if ' Gaius ' is the familiar Roman praenomen *, he must have
had a family or gentile name as well. It is probable that he was a
foreigner by birth — a Greek or a Hellenised Asiatic ; but it is also
probable that he was a Roman citizen, and possible that he taught at
Rome. It is not likely that he belonged to the class of patented
jurisconsults ; for his opinions are not quoted by the subsequent
jurists whose fragments are preserved in the Digest ; it has even been
1 It is a curious fact th&t Gaios (rdi'os) is found as the name of an Asiatic
(Gaios, son of Hermaeus, one of the avvrpwpoi of Mithridates Eupator, King of
Pontus. See Delian inscription in Th. Reinach, Mithridate Eupator, roi du Pont,
p. 52, and Plut. Pomp. 42). Yet, if Gaius the jurist was a Roman citizen, we
should have expected him to bear a Roman, or Romanised, name.
liv HISTORICAL INTRODUCTION
inferred that he was not a practising lawyer ; for amidst his
voluminous writings there is no trace of any work on Quaestiones.
His treatises may all have been of a professorial kind. They
included, beside the Institutions, Commentaries on the Provincial
Edict and the Urban Edict ; a work on the Lex Julia et Papia
Poppaea ; a Commentary on the Twelve Tables ; a book called Aurea or
Ees Quotidianae, treating of legal doctrines of general application and
utility in every-day life ; a book on Cases (apparently of a hypothetical
character) ; one on Kules of Law (Eegulae) ; and special treatises on
Verbal Obligations, Manumissions, Fideicommissa, Dowries, and
Hypotheca. He also wrote on the Tertullian and Orphitian Senatus-
consults. Gaius's Commentary on the Provincial Edict is the only
work of the kind known to us. It is not necessary to believe that
this Provincial Edict was the edict of the particular province
(perhaps Asia) of which he was a native. It may have been a
redaction of the elements common to all Provincial Edicts l.
The value attached to Gaius's powers of theoretical exposition,
and to the admirable clearness and method which made his Insti-
tutions the basis of all future teaching in Roman law, must have
been great ; for, in spite of the fact that he was not a patented juris-
consult, he appears by the side of Papinian, Paulus, Ulpian, and
Modestinus, in the ' Law of Citations ' issued by Theodosius II and
Valentinian III in 426 A. D. The beginning of this enactment runs 2 :
' We accord our approval to all the writings of Papinian, Paulus,
Gaius, Ulpian, and Modestinus, granting to Gaius the same authority
that is enjoyed by Paulus, Ulpian and the others, and sanctioning
the citation of all his works.'
Although so little is known of Gaius, yet his date can be approxi-
mately determined from the internal evidence of his works. ' We
know that he flourished under the Emperors Hadrian (117-138 A.D.),
Antoninus Pius (138-161 A. D.) and Marcus Aurelius Antoninus
(161-180 A. D.). Gaius himself mentions that he was a contemporary
of Hadrian, Dig. 34, 5, 7 pr. He apparently wrote the First Book
of his Institutions under Antoninus Pius, whom he mentions, § 53,
§ 74, § 102, without the epithet Divus (of divine or venerable memory),
a term only applied to emperors after their decease, but in the
Second Book. § 195, with this epithet. The Antoninus mentioned,
§ 126, is either Pius or Marcus Aurelius Philosophus. Respecting
the rules of Cretio, 2. § 177 Gaius appears not to be cognizant of
a Constitution of Marcus Aurelius mentioned by Ulpian, 22, 34.
That he survived to the time of Commodus appears from his having
written a treatise on the Sc. Orphitianum (178 A. D.), an enactment
1 Cf. p. xxxiii and p. xlvii, note 2. 2 Cod. Theod. 1. 4. 3.
THE LIFE AND WORKS OF GAIUS Iv
passed under that emperor' during his joint rule with his father
Marcus Aurelius (177-180 A.D.). This is the latest date which is
traceable in the life of Gaius.
Gaius was thus an elder contemporary of Papinian, who had
already entered active life in the reign of Marcus Aurelius ; and he
stands at the threshold of that brilliant period of the close of Eoman
Jurisprudence which contains the names of Scaevola, Papinian,
Ulpian and Paulus, and extends from the reign of Marcus Aurelius
to that of Severus Alexander (180-235 A.D.).
COMMENTAKIVS PRIMVS
DE IVRE
[l. DE IVBE CIVILI ET
NATVRALI.]
§ 1. Omnes populi quilegibus
et moribus reguntur partim
KUO proprio, partim, communi
omnium hominum iure utun-
tur; nam quod quis\que popu-
lus ipse sibi ius constituit, id
ipsius proprium est uocaturque
ius ciuile, quasi ius proprium
ciuitatia; quod uero naturalis
ratio inter omnes homines con-
stituit, id apud omnes populos
peraeque custoditur uocaturque
ius gentium, quasi quo iure
omnes gentes utuntur. populus
itaque Romanus partim suo pro-
prio, partim communi omnium
hominum iure utitur. quae
singula qualia sint, suis locis
proponemus.
Dig. 1, 1,9 (Gaius), Inst. 1,2,1. :
§ 2. Constant autem jura
populi Romani ex legibus, plebi-
scitis, senatusconsultis, con-
stitutionibus principum, edictis
eorum qui ius edicendi habent,
responsis prudentium.
Inst. ] , 2, 3.
§ 3. .Lex est quod populus
iubet atque constituit. Plebi-
scitum est quod plebs iubet
atque constituit. plebs autem
a populo eo distat, quod populi
appellatione uniuersi ciues sig-
nificantur, connumeratis etmm
patriciis ; plebis autem appella-
tione sine patriciis ceteri ciues
significantur ; unde olim pa-
tricii dicebant plebiscitis se non
teneri, qm'a sine auctoritate
eorum f acta essent ; sed postea
ON CIVIL LAW AND NATURAL
LAW.
§ 1. The laws of every people
governed by statutes and customs
are partly peculiar to itself, partly
common to all mankind. The
rules established by a given state
for its own members are peculiar
to itself, and are called jus civile ;
the rules constituted by natural
reason for all are observed by all
nations alike, and are called jus
gentium. So the laws of the
people of Rome are partly pecu-
liar to itself, partly common to
all nations ; and this distinction
shall be explained in detail in
each place as it occurs.
§ 2, Roman law consists of
statutes, plebiscites, senatuscon-
sults, constitutions of the em-
perors, edicts of magistrates
authorized to issue them, and
opinions of jurists.
§ 3. A statute is a command
and ordinance of the people : a
plebiscite is a command and
ordinance of the commonalty.
The commonalty and the people
are thus distinguished : the people
are all the citizens, including the
patricians ; the commonalty are
all the citizens, except the patri-
cians. Whence in former times
the patricians maintained that
they were not bound by the
plebiscites, as passed without
their authority ; but afterwards
DE IVRE
[r. §§1-7.
a statute called the lex Hortensia
was enacted, which provided that
the plebiscites should bind the
people, and thus plebiscites were
made co-ordinate with statutes.
§ 4. A senatusconsult is a com-
mand and ordinance of the senate,
and has the force of a statute,
a point which was formerly con-
troverted.
§ 5. A constitution is law estab-
lished by the emperor either by
decree, edict, or letter ; and was
always recognized as having the
force of a statute, since it is by a
statute that the emperor himself
acquires supreme executive power.
§ 6. Power to issue edicts is
vested in magistrates of the people
of Eome, the amplest authority
belonging to the edicts of the two
praetors, the home praetor and
the foreign praetor, whose pro-
vincial jurisdiction is vested in
the presidents of the provinces,
and to the edicts of the curule
aediles, whose jurisdiction in the
provinces of the people of Eome
is vested in quaestors : in the
provinces of the emperor no
quaestors are appointed, and in
these provinces, accordingly, the
edict of the aediles is not pub-
lished.
§ 7. The answers of jurists are
the decisions and opinions of
persons authorized to lay down
the law. If they are unanimous
their decision has the force of
law; if they disagree, the judge
may follow whichever opinion he
chooses, as is ruled by a rescript
of the late emperor Hadrian.
lex Hortensia lata est, qua cau-
tum est ut plebiscita uniuer-
sum populum tenerent ; itaque
eo modo legibus exaequata
sunt. Inst. 1 , 2, 4.
§ 4. Senatusconsultum est
quod senatus iubet atque con-
stituit,idque legis uicem optinet,
quamuis fuerit quaesitum.
Inst. 1, 2, 5.
§ 5. Constitutio principis
est quod imperator decreto uel
edicto uel epistula constituit.
nee umquam dubitatum est,
quin id legis uicem optineat,
cum ipse imperator per legem
imperiurn accipiat.
Inst. 1,2, 6; Dig. 1,4,1.
§6. —
ius autem edicendi habent
magistratus populi Romani ;
sed amplissimum ius est in
edictis duorum praetorutn,
urban! et peregrin!, quorum in
prouinciis iurisdictionem prae-
sides earum habent ; item in
edictis aedilium curulium,
quorum iurisdictionem in pro-
uinciis populi Romani quae-
stores habent ; nam in pro-
uincias Caesaris omnino quae-
stores non mittuntur, et ob id
hoc edictum in his prouinciis
non proponitur. Inst. 1, 2, 7.
§ 7. Responsa prudentium
sunt sententiae et opiniones
eorum quibus permissum est
iura condere. quorum omnium
si in unum sententiae concur-
runt, id quod ita sentiunt legis
uicem optinet; si uero dis-
sentiunt, iudici licet quam ue£it
sententiam sequi ; idque re-
scripto diui Hadrian i signifi-
catur. Inst. 1,2, 8.
§ 1. Jurisprudence treats exclusively of positive law: the ex-
clusive origin of positive law is some positive enactment ; the term
positive enactment including both the express or direct enactments
i. S& 1-7.1 DE IVRE GENTIVM ET CIVILI 3
3 3 J
of the political sovereign, and the implied, indirect, circuitous enact-
ments imported by the sovereign's acquiescence in the ruling of
subordinate authorities. (See Holland's Jurisprudence, chs. 2-5.)
The rules and principles denoted by the terms praetor-made law,
jurist-made law, judge-made law, are only law because they are
impliedly adopted, confirmed, and ratified by the silent acquiescence
of the sovereign.
The organ by which the jus gentium of the Eomans was pro-
mulgated, which made it by indirect enactment a portion of Komaii
Positive law, was principally the Edict 'of the Praetor. The rela-
tions of Eoman citizens with aliens (peregrini), that is, with the
members of foreign states formerly subjugated by Rome and now
living under the protection of Roman law, as well as of aliens in
their intercourse with one another, became, about 242 B.C., so
frequent as to be made subject to the jurisdiction of a special
minister of justice called Praetor peregrinus, who, like the Praetor
urbanus, published an annual edict announcing the principles on
which justice would be administered. These principles composed
jus gentium as opposed to jus civium. Jus gentium, that is to say,
was not really, as Roman jurists imagined or represented, a collec-
tion of the principles common to the legislation of all nations, but
a body of rules which the Roman praetor thought worthy to govern
the intercourse of Roman citizens with the members of all, originally
independent, but now subject, foreign nations.
Gradually the rules originating in this way were extended to the
intercourse of citizens with citizens, in cases where the rigorous
conditions of jus civile were not exactly satisfied, and so precepts
of jus gentium were transferred from the edict of praetor peregrinus
to the edict of praetor urbanus.
The portion of the edict most fertile in principles of jus gentium
would be the clauses in which the praetor announced, as he did
in some cases, that he would instruct the judex, whom he appointed
to hear and determine a controversy, to govern himself by a con-
sideration of what was aequum et bonum, i. e. by his views of
equity and expediency : and if any of the oral formularies of the
earliest system of procedure (legis actiones) contained these or
equivalent terms, such formularies may be regarded as a source
of jus gentium. It may be observed that Gaius does not, like
some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3 ;
Inst. 1, 2 pr.), make any distinction between jus gentium and jus
naturale. There is nothing in his writings, as they have come
down to us, to draw attention to the fact that the teaching of
nature may not be in accordance with the practice of nations, as
the institution of slavery showed.
B a
4 DE IVRE [i. §§ 1-7.
Another organ of quasi publication, whereby the rules of jus
gentium were transformed from ideal law to positive law — from
laws of Utopia to laws of Home — were the writings of the jurists,
who, at first with the tacit, afterwards with the express permission
of the legislature, engaged, nominally in interpreting, really in
extending the law, about the time of Cicero (De Legibus, § 1, 5),
transferred to the edict of the praetor the activity which they had
formerly displayed in developing the law of the Twelve Tables and
the statutes of the Comitia. By these means, supplemented and
confirmed by statute law and custom, the jus gentium gradually
increased in importance, and gave the Roman empire its universal
law.
Jus civile, i. e. jus eivium or law peculiar to citizens, was the law
of the Twelve Tables, augmented by subsequent legislation, by juristic
interpretation, and by consuetudinary law. The institutions of jus
civile may be exemplified by such titles to property as Mancipatio
and In Jure Cessio, contracts by the form of Nexum and Sponsio,
title to intestate succession by Agnatio or civil relationship ; while
corresponding institutions of jus gentium were the acquisition of
property by Tradition, contract by Stipulation without the solemn
term Spondeo, title to intestate succession by Cognatio or natural
relationship. Other departments of life were not subject to parallel
institutes of jus civile and jus gentium, but the mutual relations of
citizens with citizens as well as of citizens with aliens were exclu-
sively controlled by jus gentium : e. g. the informal contracts called
Consensual, such as buying and selling, letting and hiring, partner-
ship ; and the informal contracts called Real, such as the contract of
loan for use or loan for consumption.
Titles to ownership (jus in rem), according to jus gentium, which
ultimately superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), jus gentium may be
divided into two classes, according to the degree in which it was
recognized by Civil law : —
A. A portion of jus gentium was recognized as a ground of
Action. To this class belong (1) the simple or Formless contracts
to which we have alluded. (2) obligations to indemnify grounded
on delict, (3) rights quasi ex contractu to recover property when it
has been lost by one side and gained by the other without any right
to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on
this obligation to restore (condictiones), although it was a species of
naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris)
as any in the Civil code. In these cases the obligalio, though
naturalis as founded in jus gentium, yet, as actionable, was said
to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.
1. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 5
The two eminently Civil spheres of the law of obligation were
(1) specialty or Formal contracts, and (2) penal suits. Yet even
into these provinces jus gentium forced a partial entrance. We
shall see that aliens could be parties to a Stipulatio or Verbal
contract, though not by the Civil formulary, Spondeo 3 § 93 ; and
to Transcriptio, at least of one kind, 3 § 133, which was a form
of Literal contract ; and could be made plaintiffs or defendants in
penal suits by means of the employment of certain Fictions, 4 § 37.
This, however, was rather the extension of jus civile to aliens than
the intrusion of jus gentium into a Civil province.
B. Other rights and obligations of jus gentium were not admitted
as direct grounds for maintaining an action, yet were otherwise
noticed by the institutes of civil jurisprudence and indirectly
enforced. Thus a merely naturalis obligatio, though not actionable,
might (1) furnish a ground of an equitable defence (exceptio) :
for instance, on payment of a merely natural debt the receiver has
a right of retention, and can bar the suit to recover it back as a
payment made in error (condictio indebiti soluti) by pleading the
naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a
claim by Compensatio, 4 § 61, cross demand or set-off, of a debt
that rests on merely naturalis obligatio, Dig. 40, 7f 20, 2 ; or a
merely naturalis obligatio might (2) form the basis of an accessory
obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty
(constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr.,
or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are
themselves direct grounds of action. Though these rights and
obligations of natural law are imperfect (obligatio tantum naturalis)
as not furnishing immediate grounds of action, yet, as being partially
and indirectly enforced by Roman tribunals, they clearly compose
a portion of Positive law. Cf. 3 §§ 88, 89 comm.
§ 3. Plebiscites as well as the enactments of the Comitia populi
were called Leges, and were named after the tribunes by whom they
were carried, as the leges proper (rarely called populiscita) were
named after the consul, praetor or dictator by whom they were
carried. Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst.
2, 6, 2, Lex Furia testamentaria, 2 § 225, were plebiscites named
after tribunes, while the Lex Valeria Horatia was named after two
consuls, the Lex Publilia and Lex Hortensia were named after
dictators, the Lex Aurelia, 70 B. c., after a praetor. (As to the
history of plebiscita and leges and of the other sources of Eoman
law cf. Historical Introduction and see Smith's Diet, of Greek and
Roman Antiquities, 3rd ed. s. v.)
§ 4. The legislative power of the senate was in the time of the
republic a matter of controversy. It is certain that it had a power
6 DE IVRE [i. §§1-7.
of issuing certain administrative decrees or instructions to magistrates
that was hardly distinguishable from legislation. Under the
emperors matters were changed. Legislation by the Comitia,
though spoken of by Gaius in the present tense, had ceased to be
a reality after the time of Tiberius, and the last recorded lex was
passed in the reign of Nerva. As early as the time of Augustus the
auctoritas of the senate began to be regarded as the essential process
in making a law, and the subsequent rogatio of the Comitia as a
mere formality, which was finally omitted. Senatusconsults, like
laws, were sometimes named after the consuls who proposed them,
though this is not in their case an official designation ; they are
sometimes even called leges : thus the measure which Gaius calls
Sc. Claudianum, § 84, is subsequently referred to by him under the
name of lex, § 157, 4 §§ 85, 86. Ulpian says, Non ambigitur senatum
jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were
merely a disguised form of imperial constitution. The sovereignty
had in fact passed from both patricians and plebeians to the hands
of the princeps. A measure was recommended by the emperor in an
oratio or epistola to the senate, and then proposed by the consul
who convoked the senate, and voted by the senate without opposi-
tion. Hence a senatusconsult is sometimes called oratio, e. g. oratio
divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused.
No senatusconsult relating to matters of civil law occurs after the
time of Septimius Severus.
§ 5. Although when Gaius wrote the emperor had not yet acquired
the formal right of making statutes, his supreme executive power
enabled him to give to his constitutions the same force as if they
had been leges. The legal origin and character of the different
forms of imperial constitution has been much controverted, and
certainly varied at different periods.
Edicts were legislative ordinances issued by the emperor in virtue
of the jurisdiction appertaining to him as highest magistrate, and
were analogous to the edicts of the praetors and aediles. In the
time of Gaius they had only binding force during the life of the
emperor who issued them, requiring the confirmation of his successor
for their continuing validity ; but from the reign of Diocletian,
when the empire assumed an autocratic form, their duration ceased
to be thus limited.
Deere ta were judicial decisions made by the emperor as the
highest appellate tribunal: or in virtue of his magisterial juris-
diction, and analogous to the extraordinaria cognitio of the
praetor.
Epistolae or reseripta were answers to inquiries addressed to the
emperor by private parties or by judges. They may be regarded as
i. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 7
interpretations of law by the emperor as the most authoritative
juris peritus. Cf. § 94 comm.
Some examples of direct legal changes made by early emperors
are recorded, as the right conferred by the edict of Claudius men-
tioned in § 32 c of this book.
The words of Gaius explaining why constitutions had the force of
law seem to be imperfect, and may be supplemented from Justinian,
who openly asserts for himself absolute authority : Sed et quod
principi placuit legis habet vigorem : cum lege regia, quae de imperio
ejus lata est, populus ei et in eum ornne suum imperium et potestatem
concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in
this and in the corresponding passage of the Digest (1, 4, 1) attributed
to Ulpian, lex regia, in memory of the lex curiata, whereby the kings
were invested with regal power. According to Cicero the king was
proposed by the senate and elected by the Comitia Curiata, and the
election was ratified in a second assembly presided over by the king ;
e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus
adscivit, qui ut hue venit, quanquam populus curiatis eum comitiis
regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit,
De Eepubl. 2, 13, According to Mommsen and other modern
writers, however, the later Koman idea, that the king was elected
by the Comitia, is wrong, the lex curiata having been passed, not to
elect a king, but merely to ratify a previous election or nomination.
A lex curiata was also passed to confer on a Eoman magistratus his
imperium, and similarly the Koman emperor derived some of his
powers from leges, but it seems a mistake to suppose that in the
time of the principate a single lex gave him his entire authority.
A fragment of a bronze tablet, on which was inscribed the lex
investing Vespasian with sovereign powers, was discovered at Kome
in the fourteenth century, and is still preserved in the Capitol.
§ 6. Huschke points out that the vacant space in the MS. before
jus probably contained a definition of Edicta.
All the higher magistrates of Kome were accustomed to issue edicts
or proclamations. Thus the consuls convoked the comitia, the army,
the senate, by edict : the censors proclaimed the approaching census
by edict : the aediles issued regulations for the market by edict :
and magistrates with jurisdiction published edicts announcing the
rules they would observe in the administration of justice, the
Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules
being called Edicta urbana, while the Edicts of the governors
of provinces were called Edicta provincialia. These edicts, besides
being orally proclaimed, were written on white tablets (in albo)
and suspended in the forum : apud forum palam ubi de piano
legi possit, Probus, ' in the forum in an open space where persons
8 DE IVRE [i. §§ 1-7.
standing on the ground may read.' Such an edict was always
published on entering on office (est enim tibi jam, cum magistratum
inieris et in concionem adscenderis, edicendum quae sis observaturus
in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum
perpetuum, as opposed to occasional proclamations^ Edictum repen-
tinum. A clause (pars, caput, clausula, edictum) retained from a
former edict was called Edictum tralaticium, Gellius, 3, 18 ; and
though doubtless the edicts gradually changed according to changing
emergencies, each succeeding praetor with very slight modifications
substantially reproduced the edict of his predecessor. In the reign
of Hadrian the jurist Salvius Julianus, called by Justinian Prae-
toriani edicti ordinator, reduced the edict to its definite form, and
if the yearly publication was not discontinued (cf. § 6, jus edicendi
habent), at all events Julian's co-ordination of Praetorian law was
embodied in all subsequent publications. Such was the origin of
jus honorarium (praetorium, aedilicium), as opposed to jus civile :
and from what has preceded, it need hardly be stated that the
antithesis, jus civile, jus honorarium, is to a great extent coincident
with the antithesis, jus civile, jus gentium.
It may be observed that Gaius does not attribute to edicts the
force of a statute: and this theoretical inferiority of jus hono-
rarium had a vast influence in modelling the forms and proceedings
of Koman jurisprudence^ The remedy or redress administered to
a plaintiff who based his claim on jus civile differed from that
administered on an appeal to jus honorarium, as we shall see when
we come to treat of Bonitary ownership, Bonorum possessio, Actio
utilis, in factum, ficticia. This difference of remedy preserved jus
civile pure and uncontaminated, or at least distinguishable from jus
honorarium j but this perpetuation of the memory of the various
origins of the law, like the analogous distinction of Equity and
Common law in English jurisprudence, was purchased by sacrificing
simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence
of legislative power in the senate and praetor were marked by a
difference of style in the lex and plebiscite, edict, and decree of
the senate: while the lex and plebiscite employed the imperative
(damnas esto, jus potestasque esto, &c.), the resolutions of the senate
scrupulously avoid the imperative and are clothed in the forms
placere, censere, arbitrari, &c., as if they were rather recommen-
dations than commands : and the edicts and the interdicts of the
praetor are couched in the subjunctive (Exhibeas, Kestituas, &c.), a
milder form of imperative. Or to show that their force and opera-
tion is limited to his own tenure of office, they are expressed in the
first person (actionem dabo, ratum habebo, vim fieri veto). Where
I. §§ 1-7.] DE IVRE GENTIVM ET CIVILI 9
he has authority to command he shows it by using the imperative,
as in addressing the litigants (mittite ambo hominem, inite viam,
redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito).
Ihering, § 47.
In the first period of the empire, that is, in the first three
centuries of our era, it was the policy of the emperors to maintain
a certain show of republican institutions, and the administration
of the empire was nominally divided between the princeps or
emperor and the people as represented by the senate. Thus, at
Rome there were two sets of magistrates, the old republican
magistrates with little real power, consuls, praetors, tribunes,
quaestors, in outward form elected by the people ; and the imperial
nominees with much greater real authority, under the name of
praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum,
praefectus annonae, praefectus aerario ; for though nominally the
people and princeps had their separate treasuries under the name of
aerarium and fiscus, yet the treasury of the people was not managed
by quaestors as in the time of the republic, but by an official
appointed by the emperor. Similarly the provinces were divided
between the people and the prince, the people administering those
which were peaceful and unwarlike, the prince those which required
the presence of an army. The governor of a province, whether of
the people or the emperor, was called Praeses Provinciae. The
Praeses of a popular province was a Proconsul, and the chief sub-
ordinate functionaries were Legati, to whom was delegated the civil
jurisdiction, and quaestors, who exercised a jurisdiction corresponding
to that of the aediles in Rome. The emperor himself was in theory
the Proconsul of an imperial province ; but the actual governor,
co-ordinate with the Proconsul of a senatorial province, was the
Legatus Caesaris, while the financial administration and fiscal juris-
diction were committed to a functionary called Procurator Caesaris,
instead of the republican Quaestor. Sometimes the same person
united the office of Procurator and Legatus, as, for instance, Pontius
Pilate.
§ 7. The opinions of a jurist had originally only the weight that
was due to his knowledge and genius ; but on the transfer of power
from the hands of the people to those of the princeps, the latter
recognized the expediency of being able to direct and inspire the
oracles of jurisprudence ; and accordingly Augustus converted the
profession of jurist into a sort of public function, giving the decisions
of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49
(cf. Inst. 1, 2, 8). ' Until Augustus, the public decision of legal
questions was not a right conferred by imperial grant, but any one
who relied on his knowledge advised the clients who chose to
10 DE IVRE [i. §§ 1-7.
consult him. Nor were legal opinions always given in a letter
closed and sealed, but were generally laid before the judge in
the writing or by the attestation of one of the suitors. Augustus,
in order to increase their weight, enacted that they should be
clothed with his authority, and henceforth this office was sought for
as a privilege.' Those jurists who had the jus respondendi were
called juris auctores. Their auctoritas resided, in the first instance,
in their responsa, or the written opinions they gave when consulted
on a single case ; but in the second instance, doubtless, in their
writings (sententiae et opiniones), which were mainly a compila-
tion of their responsa, a fact which has left its traces in the
disjointed and incoherent style which disagreeably characterizes
Eoman juristic literature. The jus respondendi instituted by
Augustus and regulated by Tiberius, who themselves held the office
of Pontifex Maximus, gave those to whom it belonged similar
authority in interpreting law as had previously been exercised by
the College of Pontifices — 'omnium tamen harum et interpretandi
scientia et actiones apud Collegium Pontificum erant, ex quibus
constituebatur, quis quoque anno praeesset privatis ' (Pomponius in
Dig. 1, 2, 6 ; cf. Sohm, § 18).
As to the mode of collecting the opinions of the juris auctores
no precise information has come down to us, but § 6 shows that the
duty of the judex, in the not uncommon event of the authorities
differing in their opinions on a case, was open to doubt, till Hadrian's
rescript allowed him under these circumstances to adopt the opinion
he preferred. It may be gathered from the words ' quorum omnium '
that all authorized jurists had to be consulted. The jus respondendi,
as thus explained, may have continued in existence till the end of
the third century, by which time the originative force of Eoman
jurisprudence had ceased. Instead of giving independent opinions
jurists had become officials of the emperor, advising him in drawing
rescripts and other affairs of imperial government. Legal authority
rested in the writings of deceased juris auctores. (For a discussion
of the causes of the decline of Roman Jurisprudence see Grueber's
Art. in Law Quarterly Review, vii. 70.) In the course of centuries
the accumulation of juristic writings of co-ordinate authority was
a serious embarrassment to the tribunals. To remedy this evil,
A. D. 426, Valentinian III enacted what is called the law of citations,
Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions
of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of
any other jurists whom these writers quoted, provided that such
quotations should be verified by reference to the original writings of
these jurists (codicum collatione firmentur — on the question of the
way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case
i. §§1-7.] DE IVRE GENTIVM ET CIVILI 11
of a divergence of opinion, the authorities were to be counted, and the
majority was to prevail. In case of an equal division of authorities,
the voice of Papinian was to prevail. A. D. 533, Justinian published
his Digest or Pandects, a compilation of extracts from the writings
of the jurists, to which, subject to such modifications as his com-
missioners had made in them, he gives legislative authority. Every
extract, accordingly, is called a lex, and the remainder of the writings
of the jurists is pronounced to be absolutely void of authority. To
prevent the recurrence of the evil which his codification was in-
tended to remove, and confident in the lucidity and adequacy of his
Digest and Code, which latter is a compilation of imperial statute law
after the model of the Theodosian code, Justinian prohibits for the
future the composition of any juristic treatise or commentary on the
laws. If any one should disregard the prohibition, the books are to
be destroyed and the author punished as guilty of forgery '(falsitas),
Cod. 1 , 1 7, 2, 2 1. The constitutions enacted by Justinian subsequent to
the publication of his code are called Novellae, Constitutiones or Novels.
We shall find frequent allusions, as we proceed in this treatise,
to the existence of rival schools among the Roman juris auctores.
This divergence of the schools dates from the first elevation of the
jurist to a species of public functionary, namely, from the reign of
Augustus, in whose time, as we have seen, certain jurists began to
be invested by imperial diploma with a public authority. In his
reign the rival oracles were M. Antistius Labeo and C. Ateius
Capito : Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47.
' The first founders of the two opposing sects.' From Labeo's works
there are 61 extracts in the Digest, and Labeo is cited as an authority
in the extracts from other jurists oftener than any one else except
Salvius Julianus. From Sempronius Proculus, a disciple of Labeo,
and of whom 37 fragments are preserved in the Digest, the school
derived its name of Proculianj. Other noted jurists of this school
were Pegasus, in the time of Vespasian ; Celsus, in the time of
Domitian, who gave rise to the proverb, responsio Celsina, a dis-
courteous answer, and of whom 141 fragments are preserved ; and
Neratius, of whom 63 fragments are preserved. To the other school
belonged Masurius Sabinus, who flourished under Tiberius and
Nero, and from whom the sect were called Sabiniani. To the same
school belonged Caius Cassius Longinus, who flourished under Nero
and Vespasian, and from whom the sect are sometimes called
Cassiani : Javolenus Priscus, of whom 206 fragments are preserved :
Salvius Julianus, the famous Julian, above mentioned, of whom
456 fragments are preserved : Pomponius, of whom 578 fragments
are preserved : Sextus Caecilius Africanus, celebrated for his ob-
scurity, so that Africani lex in the language of lawyers meant lex
12 DE IVRE [i. §§ 1-7.
difficilis, of whom 131 fragments are preserved: and, lastly, our
author, Gaius, who flourished under Hadrian, Antoninus Pius, and
Marcus Aurelius, and from whose writings 535 extracts are to be
found in the Digest.
If we now inquire whether this divergence of schools was based
on any difference of principle, the answer is, No : on none, at least,
that modern commentators have succeeded in discovering: it was
merely a difference on a multitude of isolated points of detail. We
are told indeed that the founders were men of dissimilar characters
and intellectual dispositions : that Labeo was characterized by bold-
ness of logic and a spirit of innovation ; while Capito rested on
tradition and authority, and inclined to conservatism, Dig. 1, 2, 47 ;
but it is altogether impossible to trace their opposing tendencies in
the writings of their successors : and we must suppose that the
intellectual impulse given by Labeo was communicated to the fol-
lowers of both schools of jurisprudence. But though, as we have
stated, no difference of principle was involved, each school was
accustomed to follow its leaders or teachers (praeceptores) with much
servility ; and it is quite an exception to find, on a certain question,
Cassius, a member of the Sabinian school, following the opinion of
Labeo ; while Proculus, who gave his name to Labeo's school, pre-
ferred the opinion of Ofilius, the teacher of Capito, 3 § 140 ; Gaius
too, who was a Sabinian, sometimes inclines to the opinion of
the rival school ; cf. 3, § 98. Controversies between the two schools
are referred to by Gaius in the following passages of his Institutes :
1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98,
103, 141, 167-8, 177-8; 4, 78-9, 114, 170.
As long as these schools of law, which may have derived their
constitution from the Greek schools of philosophy, existed, the office
of President appears to have devolved by succession from one jurist
to another. (For an account of this subject and references to the
chief modern writers who have discussed it see Sohm, pp. 98, &c.)
We may briefly mention some of the most illustrious jurists who
flourished somewhat later than Gaius. Aemilius Papinianus, who
was probably a Syrian, lived in the time of Septimius Severus, and
was murdered by the order of Caracalla: 601 extracts from his
writings are contained in the Digest. It was perhaps to some
extent due to the transcendent genius, or at least to the extra-
ordinaiy reputation, of Papinian, which made him seem too great
to be reckoned any man's follower, that we cease about his time to
hear of opposing schools of jurisprudence. Papinian appears to have
accompanied Severus to York, fulfilling the important function of
praefectus praetorio, so that England may claim some slight con-
nexion with the brightest luminary of Roman law.
i. §8.] DE I VRIS DIVISIONS 13
A disciple and colleague of Papinian, of Syrian origin, who like-
wise became praefectus praetorio, was Domitius Ulpianus, murdered
by the praetorian soldiery, whose domination he resisted, in the
presence of the Emperor Alexander Severus : 2464 fragments, com-
posing about a third of the whole Digest, are taken from his
writings. An epitome of his Liber Singularis Eegularum is still
extant in a manuscript of the Vatican Library, and is the work
referred to when, without mentioning the Digest, we cite the
authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of
whose writings 2081 fragments are preserved in the Digest, forming
about a sixth of its mass. An epitome of his treatise called
Sententiae Keceptae is found, with the Epitome of Gaius, in the
code of Alaric II, king of the Visigoths ; and it is to this book that
we refer when we simply cite the authority of Paulus.
A disciple of Ulpian's was Herennius Modestinus, of whom 344
extracts are contained in the Digest. After Modestinus the lustre of
Roman jurisprudence began to decline. (For a detailed account of the
Roman jurists, see Roby's Introduction to the Digest, chs. vi-xvi.)
Besides the sources of law enumerated by Gaius, the Institutes
of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of
consuetudinary or customary law (jus non scriptum, consensu
receptum, moribus introductum). To this branch of law are
referred, with other rules, the invalidity of donations between
husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to
make a will for his filiusfamilias who dies before the age of puberty
(pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in
Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may
suppose that Customary law, like Roman law in general, would fall
into two divisions, jus civile and jus gentium, the former embracing
what Roman writers sometimes speak of as mores majorum. Before
the time of Gaius, however, most of Customary law must have been
incorporated by statute, as in early times by the law of the Twelve
Tables, or taken up into the edict of the praetor or the writings of the
jurists, Cic. De Invent. 2, 22, 67; i. e. unwritten law must have
changed its character and have been transformed into written law.
[ll. DE IVRIS DI VISION E.] ON THE BRANCHES OF THE LAW.
§ 8. Omne autem ius quo § 8. The whole of the law by
utimur uel ad personas pertinet which we are governed relates
uel ad res uel ad actiones. ei, either to persons, or to things,
prius uideamus de personis. or to actions ; and let us first
Inst. 1, 2, 12 : Gaius in Dig. 1, examine the law of persons.
5,1.
§ 8. What are the leading divisions of law — what are the main
14 DE IVRE [i. § 8.
masses into which legislation naturally breaks itself — what are the
joints and articulations which separate the whole code into various
subordinate codes, like the different limbs and members of an
organic whole — what is the import of the Gaian division, adopted
perhaps from previous writers, into jus personarum, jus rerum, jus
actionum, or rather, to adhere to the classical phrases, jus ad per-
sonas pertinens, jus ad res pertinens, jus ad actiones pertinens ?
By jus ad actiones pertinens, to begin with the easier part of the
problem, there is no doubt that the inventor of the division intended
to designate the law of PROCEDURE as opposed to the law of
rights ; the adjective code, to use Bentham's phraseology, as opposed
to the substantive code. There is as little doubt that in the Institu-
tions of Gaius this design is not executed with precision, and that,
instead of the law of procedure, the last portion of his treatise
contains also to some extent the law of sanctioning rights, as opposed
to the law of primary rights. (For the meaning of this distinction
see Austin's Jurisprudence, bk. i.) Or perhaps we should say that
the legislative provisions respecting Procedure have a double aspect :
a purely formal aspect, so far as they give regularity and method
to the enforcement of sanctioning rights ; and a material aspect,
so far as certain stages of procedure (e.g. litis contestatio and res
judicata) operate like Dispositions or any other Titles to modify
the substantive rights of the contending parties. Procedure, then,
is treated of in these Institutions partly indeed in its formal
character, but still more in its material character, i.e. so far as its
incidents can be regarded as belonging to the substantive code.
It is more difficult to determine the principle of the other division,
the relation of the law of Persons to the law of Things. They both
deal with the rights and duties of persons in the ordinary modern
acceptation of the word ; why then, we may inquire, are certain
rights and duties of persons separated from the rest and dealt with
under the distinguishing category of jura personarum? It is not
enough to say with Austin that the law of Things is the universal
or general portion of the law, the law of Persons a particular and
exceptional branch ; that it is treated separately on account of no
essential or characteristic difference, but merely because it is com-
modious to treat separately what is special and exceptional from
what is general and universal. This answer furnishes no positive
character of the law of Persons, but only the negative character
of anomaly, i. e. of unlikeness to the larger portion of the law ;
but it would be difficult to show that the law of Persons is more
exceptional, anomalous, eccentric, than the Civil dispositions as
opposed to the Natural dispositions of the law of Things.
We must look to the details of the law of Persons, and observe
i. § 8.] DE IVBJS DIVISIONE 15
whether its dispositions have any common character as contrasted
with the dispositions of the law of Things. The law of Persons,
in other words, the law of Status, classifies men as slaves and free,
as citizens (privileged) and aliens (unprivileged), as paterfamilias
(superior) and filiusfamilias (dependent). The law of Things looks
at men as playing the parts of contractors or of neighbouring
proprietors ; in other words, the law of Persons considers men as
UNEQUALS, the law of Things considers them as EQUALS : the
one may be defined as the law of relations of inequality, the other as
the law of relations of equality.
It may induce us to believe that the law of unequal relations
and the law of equal relations is a fundamental division of the
general code, if we consider how essential are the ideas of equality
and inequality to the fundamental conception of law. If we ventured
on a Platonic myth, we might say that Zeus, wishing to confer the
greatest possible gift on the human race, took the most opposite
and uncombinable things in the universe, Equality and Inequality,
and, welding them together indissolubly, called the product by the
name of political society or positive law.
The assumption will hardly be controverted, that in the relations
of subject to subject, Positive law, like Ethical law, recognizes, as
an ideal at least, the identity of the just (lawful) with the equal.
Inequality, however, is no less essentially involved in positive law.
We have seen that there is no right and no duty by positive law
without a legislator and sovereign to whom the person owing the
duty is in subjection. On the one side weakness, on the other
irresistible power. Positive rights and duties, then, imply both
the relation of subject to subject and the relation of subject to
sovereign or wielder of the sanction, in other words, both the relation
of equal to equal and the relation of unequal to unequal. It is the
more surprising that Austin should apparently have failed to seize
with precision this conception of the law of Persons, as he makes
the remark, in which the whole truth seems implicitly contained,
that the bulk of the law of Persons composes the Public, Political,
or Constitutional code (jus publicum). Political society or govern-
ment essentially implies subordination. It implies, on the one hand,
sovereign power reposing in various legislative bodies, distributed,
delegated, and vested in various corporations, magistrates, judges,
and other functionaries ; on the other hand, private persons or
subjects subordinate to the sovereign power and to its delegates and
ministers. The different forms of government are so many forms
of subordination, so many relations of superior and inferior, that is,
so many relations of unequals. Public law, then, is a law of Status,
and the law of Persons or law of Status in the private code is the
16 DE IVKE [i. § 8.
intrusion of a portion of the public code into the private code ; or,
in barbarous and semi-civilized legislations, the disfigurement of
private law by the introduction of relations that properly belong
to public law. For instance, the most salient institution of the
ancient Eoman law of Persons, the power of life and death over
wife and child that vested in the father of the household, was the
concession to a subject of an attribute that properly belongs to
the sovereign or a public functionary. Another institution, slavery,
placed one subject over another in the position of despotic sovereign.
The relation of civis to peregrinus may be conjectured to have
originally been that of patronus to cliens, that is to say, of political
superior to political inferior.
Government or positive law has usually commenced in the inva-
sion by the stronger of the (moral) rights of the weaker ; but so
necessary is inequality to equality, or subordination to co-ordination,
that the (moral) crimes of ancient conquerors are regarded with
less aversion by philosophic historians, as being the indispensable
antecedents of subsequent civilization. The beginnings, then, of
positive law have been universally the less legitimate form of in-
equality, inequality between subject and subject, leaving its traces
in dispositions of the civil code: but the advance of civilization is
the gradual elimination of inequality from the law, until little
remains but that between magistrate and private person, or sove-
reign and subject. Modern society has advanced so far on the path
of equalization, in the recognition of all men as equal before the
law, that the distinctions of status, as they existed in the Koman law
of persons, are almost obliterated from the private code. Slavery
has vanished ; parental and marital power are of the mildest form ;
civilized countries accord the same rights to cives and peregrini ;
guardians (tutores) in modern jurisprudence, as in the later period
of Eoman law, are considered as discharging a public function, and
accordingly the relation of guardian and ward may be regarded as
a portion of the public code.
Before we terminate our general remarks on the nature of status,
it is necessary to distinguish from the law of Persons a department
of law with which, in consequence of a verbal ambiguity, it is some-
times confounded. Blackstone deserves credit for having recognized
Public law as part of the law of Persons ; but he also included under
the law of Persons that department of primary rights to which
belong the right of free locomotion, the right of using the bodily
organs, the right to health, the right to reputation, and other rights
which perhaps more commonly emerge in the redress meted out for
their violation, that is, in the corresponding sanctioning rights, the
right of redress for bodily violence, for false imprisonment, for bodily
i. § 8.] DE IVRIS DIVISIONE 17
injury, for defamation, and the like. These, however, are not the
special and exceptional rights of certain eminently privileged classes,
but the ordinary rights of all the community, at least of all who live
under the protection of the law; they belong to filiusfamilias as well
as to paterfamilias, to peregrinus and latinus as well as to civis.
The rights in question, that is to say, do not belong to the law of
unequal rights, or the law of Persons, but to the law of equal rights,
or the law of Things.
The anomalous institution of slavery, however, furnishes a ground
for controverting this arrangement ; for, as by this legalized iniquity
of ancient law, the slave, living as he did, not so much under the
protection as under the oppression of the law, was denuded of all
legal rights, including those of which we speak, we cannot say that
these rights belong to servus as well as to liber. The same, how-
ever, may be said of contract rights and rights of ownership, for
the slave had neither part nor lot in these on his own account any more
than in the right of a man to the use of his own limbs. In defining,
therefore, jura rerum to be the equal rights of all, we must be
understood to mean, of all who have any rights. Perhaps, indeed,
instead of saying that jura rerum are the rights of men regarded as
equal, it would be more exact to say, that while jus personarum
regards exclusively the unequal capacities, that is, the unequal rights
of persons, jus rerum treats of rights irrespectively both of the
equality and the inequality of the persons in whom they are vested,
leaving their equal or unequal distribution to be determined by jus
personarum.
In order to mark the natural position of these rights in the civil
code, I have avoided designating them, with Blackstone, by the
name of Personal rights, a term which I am precluded from using
by yet another reason. I have employed the terms Personal right
and Keal right to mark the antithesis of rights against a single
debtor and rights against the universe. Now the rights in ques-
tion are rights that imply a negative obligation incumbent on all
the world, that is to say, in our sense of the words they are not
Personal, but Real.
As contrasted with Acquired rights (Erworbene Eechte, jus
quaesitum) they are called Birthrights or PRIMORDIAL rights
(Urrechte), names which are open to objection, as they may seem to
imply a superior dignity of these rights, or an independence, in
contrast with other rights, of positive legislation, characters which
the name is not intended to connote. For purposes of classification
this branch of primary rights is of minor importance. Unlike
Status, Dominion, Obligation, Primordial rights are not the ground
of any primary division of the code. The actions founded on the
WHITTUCK
18 DE PERSONIS [i.§§9-12.
infraction of Primordial rights partly belong to the civil code of
obligation arising from Tort (e.g. actio injuriarum), partly and
principally to the criminal code. (On the different interpretations
which have been put on this threefold division of Private Law
cf. Moyle's Introduction to the Inst. Just.)
[ill. DE CONDICIONE HOMINVM.] ON DIVERSITIES OF CONDITION.
§ 9. Et quidem summa di- § 9. The first division of men
uisio de iure personarum haec by the law of persons is into
est quod omnes homines aut freemen and slaves,
liberi sunt aut serui.
§10. Rursusliberorumhorni- §10. Freemen are divided into
num alii ingenui sunt, alii freeborn and freedmen.
libertini.
§ 11. Ingenui suntqui liberi § 11. The freeborn are free by
nati sunt ; libertini qui ex birth ; freedmen by manumission
iusta seruitute manumissi sunt. from legal slavery.
§ 12. Rursus libertinorum § 12. Freedmen, again, are di-
(tria sunt genera; nam aut vided into three classes, citizens
dues Romani aut Latini aut of Kome, Latins, and persons on
dediticioTum} numero sunt. the footing of enemies sur-
de quibus singulis dispiciamus ; rendered at discretion. Let us
ac prius de cMiticiis. examine each class in order, and
commence with freedmen assimi-
lated to enemies surrendered at
discretion.
§ 12. As Gaius has not marked very strongly the divisions of
the present book, it may be worth while to consider what are the
leading branches of the doctrine of Status. Status falls under
three heads — liberty (libertas), citizenship (civitas), and domestic
position (familia).
Under the first head, men are divided into free (liberi) and slaves
(servi) : the free, again, are either free by birth (ingenui) or by
manumission (libertini). We have here, then, three classes to
consider: ingenui, libertini, servi.
Under the second head men were originally divided into citizens
(cives) and aliens (peregrini). The rights of citizens fall into two
branches, political and civil, the former being electoral and legisla-
tive power (jus suffragii) and capacity for office (jus honorum) ; the
latter relating to property (commercium) or to marriage (connu-
bium). Aliens were of course devoid of the political portion of
these rights (suffragium and honores) ; they were also devoid of
proprietary and family rights as limited and protected by the jus
civile (commercium and connubium), though they enjoyed corre-
sponding rights under the jus gentium. At a subsequent period
a third class were intercalated between cives and peregrini, namely,
Latini, devoid of the political portion of the rights of citizenship, and
I. §§ 9-12.] DE CONDICIONE HOMINVM 19
enjoying only a portion of the private rights of citizenship, com-
mercium without connubium. Here also, then, we have three
classes, cives, Latini, peregrini.
The powers of the head of a family came to be distinguished by
the terms potestas, man us, mancipium: potestas, however, was
either potestas dominica, power over his slaves, or potestas patria,
power over his children, which, at the period when Koman law is
known to us, were different in kind ; so that the rights of pater-
familias were really fourfold. Manus or marital power placed the
wife on the footing of filiafamilias, which was the same as that of
filiusfamilias. Paterfamilias had a legal power of selling (mancipare)
his children into bondage ; and mancipium, which is also a word
used to denote a slave, designated the status of a filiusfamilias who
had been sold by his parent as a bondsman to another paterfamilias.
In respect of his purchaser, such a bondsman was assimilated to
a slave i in respect of the rest of the world, he was free and a
citizen, though probably his political capacities were suspended as
long as his bondage (mancipii causa) lasted, § 116*. As slaves are
treated of under the head of libertas, and the status of the wife
(manus) was not legally distinguishable from that of the son,
we may say, that in respect of domestic dependence or inde-
pendence (familia), as well as in respect of libertas and civitas,
men are divided into three classes, — paterfamilias, filiusfamilias,
and Qui in mancipio est ; paterfamilias alone being independent (sui
juris), the other two being dependent (alieni juris) in unequal degrees.
These different classes are not examined by Gaius with equal
minuteness. Under the first head he principally examines the
libertini : the classes under the second head, cives, Latini, peregrini,
are only noticed indirectly, i. e. so far as they present a type for the
classification of libertini ; and the bulk of the first book of the
Institutions is devoted to domestic relations.
In modern jurisprudence, Status having disappeared, the law of
domestic relations — the relation of husband to wife, parent to child,
guardian to ward — constitutes the whole of that of which formerly
it was only a part, the law of Persons. It differs from the rest of
the civil code in that, while the relations of Property and Obligation
are artificial and accidental, the relations governed by the code of
the Family are natural, and essential to the existence of the human
race: so much so that the principal relations of the family extend
to the rest of the animal world, and the portion of the code relating
to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3,
Inst. 1, 2 pr. Secondly, whereas every feature of Property and
Obligation is the creation of political law, Domestic life is only
partially governed by political law, which leaves the greater portion
C 2
20
DE PERSONIS
[i. §§ 13-27.
of its rights and duties to be ruled by the less tangible dictates of
the moral law.
The pure law of the Family, that is, when we exclude all con-
sideration of Property and Obligation relating to property, is of
very moderate compass : but with the pure code of the family it is
convenient to aggregate what we may call with Savigny, Syst. § 57,
the applied code of the Family, i. e. such of the laws of Property and
Obligation as concern members of the family group — husband and
wife, parent and child, guardian and ward. The main divisions
then of the substantive code are Family law Pure and Applied ; the
law of Ownership ; and the law of Obligation. If, in view of its
importance, we separate from the law of Ownership the law of
Rerum Universitates, confining the law of Ownership to the province
of Ees singulae, we may add to the three we have enumerated a
fourth division, the law of Successions per universitatem. Sohm, § 29.
[lIII. DE DEDITICIIS VEL LEGE
AELIA SENTIA.]
§ 13. Lege itaque Aelia
Sentia cauetur ut qui serui a
dominis poenae nomine uincti
sint, quibusue stigmata in-
scripta sint, deue quibus ob
noxam quaestio tormentis ha-
bita sit et in ea noxa fuisse
conuicti sint, quiue ut ferro
aut cum bestiis depugnarent
traditi sint, inue ludum custo-
diamue comecti fuerint, et postea
uel ab eodem domino uel ab
alio manumissi, eiusdem con-
dicionis liberi fiant, cuius con-
dicionis suntperegrini deditim.
[V. DE PEEEGRINIS DEDI-
TICIIS.]
§ 14. Vocantur autem pere-
grini dediticii hi qui quondam
aduersus populum Romanum
armis susceptis pugnauerunt,
deinde uicti se dediderunt.
§ 15. Huius ergo turpitu-
dinis seruos quocumque modo
et cuiuscumque aetatis manu-
missos, etsi pleno iure domi-
norum fuerint, numquam aut
ciues Romanes aut Latinos fieri
FREEDMEN ASSIMILATED TO SUR-
RENDERED FOES AND DISPOSI-
TIONS OF THE LEX AELIA SENTIA.
§ 13. The law Aelia Sentia
enacts that slaves who have been
punished by their proprietors
with chains, or have been branded,
or have been examined with
torture on a criminal charge, and
have been convicted, or have been
delivered to fight with men or
beasts, or have been committed to
a gladiatorial school or a public
prison, if subsequently manu-
mitted by the same or by another
proprietor, shall acquire by manu-
mission the status of enemies
surrendered at discretion.
CONCERNING SURRENDERED
ENEMIES.
§ 14. Surrendered enemies are
people who have taken up arms
and fought against the people of
Eome and having been defeated
have surrendered.
§ 15. Slaves tainted with this
degree of criminality, by what-
ever mode they are manumitted
and at whatever age, and notwith-
standing the plenary dominion
of their proprietor, never become.
I. §§ 13-27.]
« 3 -1
DE LIBERTINIS
21
dicemus, sed omni modo dedi-
ticiorum numero constittd in-
tellegeinus.
§ 16. Si uero in nulla tali
turpitudine sit seruus, manu-
missum modo ciuem Romanum
modo Latinum fieri dicemus.
§ 17. Nam in cuius persona
tria haec concurrunt, ut maior
sit annorum triginta, et ex iure
Quiritium domini, et iusta ac
legitima inanumissione libere-
tur, id est uindicta aut censu
aut testamento, is ciuis Ro-
manus fit ; sin uero aliquid
eorum deerit, Latinus erit.
[FT. DE MANVMISSIONE VEL
CAVSAE PROBATIONS.]
§ 18. Quod autem de aetate
serui requiritur, lege Aelia
Sentia introductum est. nam
ea lex minores xxx annorum
seruos non aliter uoluit manu-
missos ciues Roman os fieri,
quam si uindicta, apud con-
silium iusta causa manumis-
sionis adprobata, liberati fue-
rint.
§ 19. Iusta autem causa
manumissionis est ueluti si
quis filium filiamue aut fratrem
sororemue naturalem,aut alum-
num, aut paer^agogum, aut
seruum procuratoris habendi
gratia, aut ancillam matrimonii
causa, apud consilium manu-
mittat. »
[rZJ. DE CONSILIO ADHIBENDO.]
§ 20. Consiliuin autem ad-
hibetur in urbe Roma quidem
citizens of Rome or Latins, but
can only acquire the status of
enemies who have surrendered.
§ 1 6. If the slave has not com-
mitted offences of so deep a dye,
manumission sometimes makes
him a citizen of Rome, sometimes
a Latin.
§ 17. A slave in whose person
these three conditions are united,
thirty years of age, quiritary
ownership of the manumitter,
liberation by a civil and statutory
mode of manumission, i. e. by
the form of vindicta, by entry
on the censor's register, by testa-
mentary disposition, becomes
a citizen of Rome: a slave
who fails to satisfy any one of
these conditions becomes only a
Latin.
ON MANUMISSION AND PROOF OF
ADEQUATE GKOUNDS OF MANU-
MISSION.
§ 18. The requisition of a cer-
tain age of the slave was intro-
duced by the lex Aelia Sentia,
by the terms of which law, unless
he is thirty years old, a slave
cannot on manumission become
a citizen of Rome, unless the
mode of manumission is by the
form of vindicta, preceded by
proof of adequate motive before
the council.
§ 19. There is an adequate
motive of manumission if, for in-
stance, a natural child or natural
brother or sister or foster child
of the manumitter's, or a teacher
of the manumitter's child, or a
male slave intended to be em-
ployed as an agent in business,
or a female slave about to become
the manumitter's wife, is presented
to the council for manumission.
CONCERNING THE CONSTITUTION OF
THE COUNCIL.
§ 20. The council is composed
in the city of Rome of five sena-
22
DE PERSONIS
[i. §§ 13-27.
L v a
quinque senatorum et quinque
equitum Romanorum puberum ;
in prouinciis autem uiginti
recuperatorum ciuium Roma-
norum, idque fit ultimo die
conuentus ; sed Romae certis
diebus apud consilium manu-
mittuntur. maiores uero tri-
ginta annorum serui semper
manuinitti solent, adeo ut uel
in transitu manumittantur,
ueluti cum praetor aut pro
consule in balneum uel in thea-
trum eat.
§ 21. Praeterea minor tri-
ginta annorum seruus [manu-
missus] potest ciuis Romanus
fieri, si ab eo domino qui sol-
uendo non erat, testamento
eum liberum et heredem re-
lictum «•
(24 uersus in C legi nequeunt)
Ulp. 1, 14 ; Inst. 1,6, 1 ; Epit.
1, 1, 2.
§ 22. • homines Latini
luniani appellantur ; Latini
ideo, quia adsimulati sunt
Latini s coloniariis ; luniani
ideo, quia per legem luniam
libertatem acceperunt,cum olim
serui uiderentur esse.
§ 23. New tamen illis per-
mittit lex lunia uel ipsis testa-
mentum facere, uel ex testa-
mento alieno capere, uel tutores
testamento dari. Ulp. 20, 14.
§ 24. Quod autem diximus
ex testamento eos capere non
posse, ita intellegemus, ne quid
cftrecto hereditatis legatorumue
nomine eos posse capere dica-
nms: alioquin per fideicom-
missum capere possunt.
§ 25. Hi uero qui dediticio-
tors and five Roman knights
above the age of puberty : in the
provinces of twenty recuperators,
who must be Roman citizens, and
who hold their session on the last
day of the assize. At Rome the
council holds its session on certain
days appointed for the purpose.
A slave above the age of thirty
can be manumitted at any time,
and even in the streets, when the
praetor or pro-consul is on his
way to the bath or theatre.
§ 21. Under the age of thirty a
slave becomes by manumission
a citizen of Rome, when his owner
being insolvent leaves a will, in
which he gives him his freedom
and institutes him his heir (2
§ 154), provided that no other
heir accepts the succession.
§ 22. Slaves manumitted in
writing, or in the presence of
witnesses, or at a banquet, are
called Latini Juniani: Latini be-
cause they are assimilated in
status to Latin colonists (§ 131),
Juniani because they owe their
freedom to the lex Junia, before
whose enactment they were slaves
in the eye of the law.
§ 23. These freedmen, however,
are not permitted by the lex
Junia either to make a will or
to take under the will of another,
or to be appointed testamentary
guardians.
§ 24. Their incapacity to take
under a will must only be under-
stood as an incapacity to take
directly as heirs or legatees, not
to take indirectly as beneficiaries
of a trust.
§ 25. Freedmen classed with
I. §§ 13-27.]
DE LIBERTINIS
23
rum numero sunt nullo modo
ex testamento capere possunt,
non magis quam quilibet pere-
grinus, -nee ipsi testamentum
facere possunt secundum id
quod magis placuit,
§ 26. Pessima itaque libertas
eorum est qui dediticiorum
numero sunt ; nee ulla lege
aut senatusconsulto aut con-
stitutione principali aditus illis
ad ciuitatem Romanam datur.
§ 27. Quin etiam in urbe
Roma uel intra centesimum
urbis Romae miliarium morari
prohibentur; et si qui contra
ea fecerint, ipsi bonaque eorum
publice uenire iubentur ea con-
dicione, ut ne in urbe Roma
uel intra centesimum urbis
Romae miliarium seruiant neue
umquam manumittantur ; et si
manumissi fuerint, serui populi
Romani esse iubentur. et haec
ita lege Aelia Sentia cowpre-
hensa sunt.
surrendered enemies are incapable
of taking under a will in any
form, as are other aliens, and are
incompetent to make a will ac-
cording to the prevalent opinion.
§ 26. It is only the lowest
grade of freedom, then, that is
enjoyed by freedmen assimilated
to surrendered aliens, nor does
any statute, senatusconsult, or
constitution open to them a way
of obtaining] Roman citizen-
ship.
§ 27. Further, they are forbidden
to reside in the city of Rome or
within the hundredth milestone
from it ; and if they disobey the
prohibition, their persons and
goods are directed to be sold on
the condition that they shall be
held in servitude beyond the
hundredth milestone from the
city, and shall be incapable of
subsequent manumission, and, if
manumitted, shall be the slaves
of the Roman people : and these
provisions are dispositions of the
lex Aelia Sentia.
§ 14. Peregrini dediticii. Cf. Livy 1, 38 ; Theoph. 1, 5, 3.
§ 15. Pleno jure. Cf. § 54 and 2 § 41.
§ 17. The earliest forms of manumission depended on the fiction
that the slave is a freeman. They therefore carry us back to a time
when manumission was not legally recognized. Cf. Sohm, p. 174,
n. 4, and p. 58, n. 4. Manumission was either a public or a private
act. When manumission, besides freeing a slave from the dominion
of his proprietor, converted him into a citizen of Rome, it was not
a matter of merely private interest to be accomplished by the sole
volition of the proprietor. Accordingly, the three modes of manu-
mission which conferred Roman citizenship on the manumitted
slave, vindicta, censu, testamento, involved in different forms the
intervention of the State.
In manumission by Vindicta the State was represented by the
praetor. The vindicta or festuca was a rod or staff, representing
a lance, the symbol of dominion, with which the parties in a real
action (vindicatio) touched the subject of litigation as they solemnly
24 DE PEKSONIS [i.§§ 13-27.
pronounced their claim, 4 § 16. Accordingly it was used in a suit
respecting freedom (liberalis causa), for this, as status is a real right
(jus in rem), was a form of real action, and was sometimes pro-
secuted by way of genuine litigation, sometimes was merely a solemn
grant of liberty, that is, a species of alienation by surrender in the
presence of the magistrate (in jure cessio). In a liberalis causa the
slave to be manumitted, being the subject of the fictitious litigation,
could not himself be a party, but was advocated by a vindex or
adsertor libertatis, who in later times was usually represented by
the praetor's lictor. The adsertor grasping the slave with one of
his hands, and touching him with the vindicta, asserted his freedom.
The proprietor quitting his grasp of the slave (manu mittens) and
confessing by silence or express declaration the justice of the claim,
the magistrate pronounced the slave to be free. This procedure,
which came to be much curtailed, belonging to the praetor's volun-
tary, not his contentious, jurisdiction, did not require the praetor to
be seated on his elevated platform in the comitium (pro tribunali),
but might be transacted by him on the level ground (de piano) ; and
as the mere presence of the praetor constituted a court (jus), he was
usually seized upon for the purpose of manumissions as he was
preparing to take a drive (gestatio), or to bathe, or to go to the
theatre, § 20 (for the different accounts given of this mode of manu-
mission see Roby, Private Law, 1, p. 26, n. 1).
In manumission by the Census the interests of the State were
represented by the censor. Censu manumittebantur olim qui
lustrali censu Romae jussu dominorum inter cives Romanos
censum profitebantur, Ulpian, 1, 8. 'Registry by the censor was
an ancient mode of manumission by the quinquennial census at
Rome when a slave at his master's order declared his right
to make his return of property (professio) on the register of
Roman citizens.' Ex jure civili potest esse contentio, quum
quaeritur, is qui domini voluntate census sit, continuone an ubi
lustrum conditum liber sit, Cic. De Orat. 1, 40. 'It is a question
of civil law, when a slave is registered with his owner's sanction,
whether his freedom dates from the actual inscription on the
register or from the close of the censorial period.' The census
was a republican institution, which had been long obsolete when
Gaius wrote. Ulpian, 1. c., speaks of it as a thing of the past.
Since the Christian era only three had been held, the last under
Vespasian, A. D. 74.
Wills were originally executed at the Comitia calata, 2 § 101,
where the dispositions of the testator, including his donations of
freedom, received legislative sanction, being converted into a private
law by the ratification of the sovereign assembly. When a new
i. §§ 13-27.] DE LIBERTINIS 25
form of will was introduced, 2 § 102, testators retained their power
of manumission, although the people here at the utmost were
only symbolically represented by the witnesses of a mancipation.
Bequests of liberty were either direct or indirect. A direct bequest
of liberty (directo data libertas) made the manumitted slave a freed-
man of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect
bequest, that is, a request to the heir to manumit the slave (fidei-
commissaria libertas), made the slave on manumission a freedman
of the heir, 2 § 266.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, A.D. 4,
and named after the consuls Sextus Aelius Catus and Caius Sentius
Saturninus, was intended to throw obstacles in the way of acquir-
ing Koman citizenship (Sueton. Aug. 40). One of its enactments
provided that a slave under the age of thirty could not be made
a citizen unless manumitted by vindicta, after proof of adequate
motive before a certain judicial board. We may inquire what would
be the effect of manumission if the causae probatio were omitted.
Inscription on the censor's register, if in use, would probably have
been null and void, as this ceremony was either a mode of making
a Eoman citizen or it was nothing. Testamentary manumission, as
we learn from Ulpian, 1, 12, left the man legally a slave, but gave
him actual liberty (possessio libertatis, in libertate esse, as opposed
to libertas), a condition recognized and protected by the praetor.
Manumission by vindicta left him still a slave (according to the
MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia
or lex Junia, it is uncertain which (cf. §§ 29, 31 ; Ulpian, 1. c.),
apparently provided that, in the absence of causae probatio, the
minor triginta annis manumissus should belong to the new class
which it introduced, namely, the Latini.
§ 19. Alumnus denotes a slave child reared by the manumitter,
as appears from the following passage : Alumnos magis mulieribus
conveniens est manumittere, sed et in viris receptum est, satisque
est permitti eum manumitti in quo nutriendo propensiorem animum
fecerint, Dig. 40, 2, 14 pr. 'Foster children are more naturally
manumitted by women than by men, though not exclusively ; and
it suffices to allow the manumission of a child who has won his
master's affection in the course of his education.' (For the custom
derived from Greece of employing slaves as paedagogi in Koman
households see Smith's Diet, of Greek and Koman Antiq. s. v.)
§ 20. The Equites Romani, who at Rome composed a moiety
of the council mentioned in the text, were either Equites or Equites
equo publico (for the title eques Romanus equo publico, which appears
in inscriptions, see Wilmann's Index Inscriptionum, 2178, 2182 ; cf.
Greenidge, Infamia, p. 88). Eques was such merely by his census :
26 DE PERSONIS [i. §§ 13-27.
Eques equo publico was a youth nominated by the emperor to the
turmae equitum ; not, however, intended for actual service with the
legions, but merely marked out as an expectant of future employ-
ment in higher public functions, military or civil. The title of
Princeps juventutis, often conferred by the emperors on their suc-
cessors designate, denoted the leader of the Equites equo publico.
This distinction of classes among Equites lasted down to the time
of Hadrian, and perhaps later. In the time of Augustus, and sub-
sequently, the list of judices (album judicum) was, according to
Mommsen (Staatsr. 3, p. 535), taken simply from the Equites
equo publico, the Senatores being no longer a decuria. Augustus
added a new decuria, the Ducenarii, those whose census amounted
to 200,000 sesterces, who judged minor cases ; and subsequently
Caligula added a fifth (cf. Greenidge's Koman Public Life).
Kecuperators are judges not taken from the panel (album judi-
cum) ; see Greenidge's Legal Procedure of Cicero's Time, p. 266.
§ 21. Ulpian says, 1, 14, that a slave either under thirty years of
age, or one who otherwise would only have become dediticius, or
a freedman of the lowest class, if he is instituted the heres neces-
sarius of an insolvent, becomes civis Komanus; cf. 2 § 154.
Mommsen would supplement the text in this section with the
following words — ' relictum alius heres nullus excludit neque ullus
alius ex eo testamento heres existat idque eadem lege cautum est.'
In respect of what is missing in the remainder of the lacuna cf. note
to Huschke's Gaius.
When manumission was a purely private act, it could not confer
Koman citizenship ; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code pro-
mulgated A.D. 506 by Alaric II, king of the Visigoths of Spain and
Gaul, contained, besides extracts from the codex Theodosianus (pro-
mulgated A.D. 438), a selection from the Sententiae of Paulus and
an epitome of these Institutes of Gaius. From this epitome it
appears that in the paragraphs now obliterated Gaius proceeded to
explain the modes of private manumission by which a slave became
Latinus Junianus, and instanced writing (per epistolam), attestation
of witnesses (inter amicos), invitation of the slave to sit with other
guests at the table of his master (convivii adhibitione).
§ 22. The lex Junia, as this law is called by Gaius and Ulpian
(3, 3), or lex Junia Norbana, the title given to it by Justinian
(Inst. 1, 5, 3), may be regarded a.s of uncertain date ; the common
opinion based on the word Norbana has been that it was passed in
the reign of Tiberius, A. D. 19, fifteen years after the lex Aelia
Sentia in the consulate of Marcus Junius Silanus and Lucius
Norbanus Balbus, but it is now thought by some well-known
I. §§ 13-27.] DE LIBERTINIS 27
writers to be earlier than the lex Aelia Sentia ; thus Mommsen
(Staatsr. 3, 626) is inclined to put it back to the end of the free republic
(cf. Schneider, Zeitschr. d. Sav. Stiftung v. E. A. 1884). It denned
and modified the status conferred by such acts of private manu-
mission as were probably mentioned in this paragraph, converting
Praetoris tuitione liber into ipso jure liber, or possessio libertatis
into genuine libertas ; with, however, sundry grievous stints and
deductions. Under this statute the freedman was nominally assimi-
lated to Latinus coloniarius, the citizen of a Koman colony in
Latium ; that is, had a moiety of the private rights composing civitas
Komana or jus Quiritium, possessing commercium without con-
nubium. As incapable of connubium or civil marriage, the Latinus
was incapable of patria potestas over his children and of agnatio or
civil relationship. Though incapable of civil marriage he was of
course capable of gentile marriage (matrimonium, uxorem liberorum
quaerendorum causa ducere) and of natural relationship (cognatio),
just as an alien (peregrinus), though, by want of commercium,
incapable of dominion ex jure Quiritium, was capable of bonitary
ownership (in bonis habere) under the jus gentium.
In virtue of commercium, the Latinus Junianus was capable of
Quiritary ownership, of civil acquisition and alienation (usucapio,
mancipatio, in jure cessio), contract (obligatio), and action (vindi-
catio, condictio), like a Koman citizen ; but in respect of testamentary
succession his rights were very limited. He was said to have
testamentary capacity (testamenti factio), Ulpian, 20, 8 ; but this
only meant that he could perform the part of witness, or familiae
emptor, or libripens (2 § 104), i.e. could assist another person to
make a valid will ; not that he could take under a will either as
heir or as legatee, or could dispose of his own property by will,
Ulpian, 20, 14. At his death all his property belonged to his
patron, as if it were the peculium of a slave, 3 § 56. In fact, as
Justinian says : Licet ut liberi vitam suam peragebant, attamen
ipso ultimo spiritu simul animam atque libertatem amittebant,
Inst. 3, 7, 4. ' Though free in their lifetime, the same moment
that deprived them of life reduced them to the condition of slaves.'
Although in the person of libertus himself, Latinitas retained
many traces of its servile origin, yet it was not so for his posterity ;
these disabilities only attached to the original freedman, not to his
issue. The son of the dediticius or Latinus Junianus, though
reduced to absolute penury by the confiscation of the parental
property to the patron, began, and continued, the world with
the ordinary capacities, respectively, of peregrinus and Latinus
coloniarius, and was under no legal obligations to the patron of his
father.
DE PERSONIS
[i. §§ 28-35.
Long before the time of Gaius, Latinitas or Latium had only
a juristic, not an ethnographic signification. Cf. § 79. Soon after
the Social War (B.C. 91) all Italy received the ci vitas Komana.
Originally Gallia Cispadana (Southern Lombardy) had civitas
Komana, while Gallia Transpadana (Northern Lombardy) had only
Latinitas, but Gallia Transpadana afterwards obtained civitas.
Latinitas was a definite juristic conception, and Latin status was
conferred as a boon on many provincial towns and districts that had
no connexion with Latium or its races. Vitellius is carped at by
Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri,
Hist. 3, 55). Hadrian made many similar grants (Latium multis
civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin
rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See § 131
Comm.
[QVIBVS MODIS LATINI AD civi-
TATEAf KOMANAJf PEEVENIANT.]
§ 28. Latini uero multis
modis ad ciuitatem Romanam
perueniunt.
§ 29. Statim enim ex lege
Aelia Sentia minores triginta
annorum manumissi et Latini
facti si uxores duxerint uel
clues Romanas uel Latinas co-
loniarias uel eiusdem condi-
cionis, cuius et ipsi essent, idque
testati fuerint adhibitis non
minus quam septem testibus
ciuibus Romania puberibus, et
filium procreauerint, cum is
films anniculus esse coeperit,
datur eis potestas per earn
legem adire praetorem uel in
prouinciis praesidem prouinciae,
et adprobare se ex lege Aelia
Sentia uxorem duxisse et ex ea
filium anniculum habere ; et si
is apud quern causa probata
est id ita esse pronuntiauerit,
tune et ipse Latinus et uxor
eius, si et ipsa (eiusdem con-
dicionis sit, etfilius, si et ipse)
eiusdem condicionis sit, ciues
Roman! esse iubentur.
Ulp.3,3.
MODES BY WHICH LATIN FREEDMEN
BECOME ROMAN CITIZENS.
§28. Latins have many avenues
to the Roman citizenship.
§ 29. For instance, the lex Aelia
Sentia enacts that when a slave
below the age of thirty becomes
by manumission a Latin, if he
take to himself as wife a citizen of
Rome, or a Latin colonist, or a
freedwoman of his own condition,
and thereof procure attestation by
not less than seven witnesses,
citizens of Rome above the age of
puberty, and begets a son, on the
latter attaining the age of a year,
he is entitled to apply to the
praetor, or, if he reside in a pro-
vince, to the president of the
province, and to prove that he
has married a wife in accordance
with the lex Aelia Sentia, and
has had by her a son who has
completed the first year of his age :
and thereupon if the magistrate
to whom the proof is submitted
pronounce the truth of the de-
claration, that Latin and his wife,
if she is of the same condition,
and their son, if he is of the same
condition, are declared by the
statute to be Roman citizens.
I. §§ 28-35.] Q. M. LATINI AD CIVITATEM R. P. 29
§ 30. Ideo autem in huius
persona adiecimus ' si et ipse
eiusdem condicionis sit,' quia
si uxor Latini ciuis Romana
est, qui ex ea nascitur, ex nouo
senatusconsulto, quod auctore
diuo Hadriano factum est, ciuis
Romanus nascitur.
Cf. § 80 ; Ulp. 1. c.
§ 31. Hoc tamen ius adi-
piscendae ciuitatis Romanae
etiamsi soft minores triginta
annorum manumissi et Latini
facti ex lege Aelia Sentia habue-
runt, tamen postea senatuscon-
sulto, quod Pegaso et Pusione
consulibus factum est, etiam
maioribus triginta annorum
manu missis Latinis factis con-
cess um est.
§ 32. Ceterum etiamsi ante
decesserit Latinus, quam anni-
culi filii causam probauerit,
potest mater eius causam pro-
bare, et sic et ipsa fiet ciuis
Romana, si Latina fuerit 1
— permissum 1 — <?ui-
busdam 1 ipse filius
ciuis Romanus sit, quia ex ciue
Romana matre natus est, tamen
debet causam probare ut suus
heres patri fiat.
§ 32 a. (quae) uero diximus
de filio annicul(o, eadem et de
filia annicula) dicta intelle-
gemus.
§326.
id
est fiunt ciues Romani, si
Romae inter uigiles sex annis
militauerint. postea dicitur
factum esse senatusconsultum,
quo data est illis ciuitas
§ 30. The reason why I added,
when I mentioned the son, if of
the same condition, was this, that
if the wife of the Latin is a citizen
of Rome, the son, in virtue of the
recent senatusconsult made on
the motion of the late Emperor
Hadrian, is a citizen of Rome
from the date of his birth.
§ 31. This capacity of acquiring
Roman citizenship, though by
the lex Aelia Sentia exclusively
granted to those under thirty
years of age who had become
Latins by this statute, by a sub-
sequent senatusconsult, made in
the consulship of Pegasus and
Pusio, was extended to all freed-
men who acquire the status of
Latins, even though thirty years
old when manumitted.
§ 32. If the Latin die before
proof of his son's attaining the
age of a year the mother may
prove his condition, and there-
upon both she and her son, if she
be a Latin, become citizens of
Rome. And if the mother fails
to prove it, the tutors of the son
may do so or the son himself
when he has attained the age of
puberty. If the son himself is a
Roman citizen owing to the fact
of his having been born of a
Roman citizen mother, he must
nevertheless prove his condition
in order to make himself his
father's self successor.
§ 32 a. What has been said
about a son of a year old, must
be understood to be equally ap-
plicable to a daughter of that
age.
§ 32 &. By the Visellian statute
those either under or over thirty
years of age, who when manu-
mitted become Latins, acquire the
jus quiritium, i. e. become Roman
citizens, if they have served for
six years in the guards at Rome.
30
DE PERSONIS
[i. §§ 28-35.
Romana, si triennium militiae
expleuerint. Ulp. 3, 5.
§ 32 c. Item edicto Claudii
Latini ius Quiritium conse-
cuntur, si nauem marinam ae-
dificauerint, quae non minus
quam decem milia modiomm
frumenti capiat, eaque nauis
uel quae in eius locum sub-
stituta stt sex annis frumen-
tum Romam portauerit.
Ulp. 3, 6.
§ 33. Praeterea a .ZVerone
constitutum est ut si Latinus
qui patrimonium sestertium cc
m ilium plurisue habebit in
urbe Roma donmm aedifica-
uerit, in quam non minus quam
partem dimidiam patrimonii
sui inpenderit, ius Quiritium
consequatur.
Tac.Ann.15,43; Ulp. 3,1.
§ 34. Denique Traianus con-
stituit ut si Latinus in urbe
trienmo pistrinum exercuerit,
in quo in dies singulos non
minus quam centenos modios
frumenti ^)inseret, ad ius Quiri-
tium peruenia£. Ulp. 1. c.
§35. . -| 1 1
sequi 1 maiores tngmta
annorum manumissi et Latini
facti 1 ius Quiri-
tium consequi £n|ginta
annorum manumittant 1
1 manumissus uindicta
aut censu aut testamento
ciuis Romanus] libertus
fit qui euro, iterauerit. ergo si
seruus in | bonis tuis, ex iure
Quiritium meus erit, Latinus
quidem a te solo fieri potest,
iterari autem a me, non etiam
a te potest, et eo modo meus
libertus fit. sed et ceteris modis
A subsequent senatusconsultum
is said to have been passed, by
which Roman citizenship was con-
ferred on Latins, who completed
three years' active military service.
§ 32 c. Similarly by an edict of
Claudius Latins acquire the right
of citizenship, if they build a ship
which holds 10,000 modii of corn,
and this ship or one substituted
for it imports corn to Rome for
six years.
§33. Nero further enacted that
if a Latin having property worth
200,000 sesterces or more, build
a house at Rome on which he ex-
pends not less than half his pro-
perty, he shall acquire the right
of citizenship.
§34. Lastly, Trajan enacted that
if a Latin carry on the business of
miller in Rome for three years,
and grinds each day not less than
a "hundred measures of wheat, he
shall attain Roman citizenship.
§ 35. Slaves who become Latins
either because they are under
thirty at the time of their manu-
mission, or having attained that
age because they are informally
manumitted, may acquire Roman
citizenship by re-manumission in
one of the three legal forms, and
they are thereby made freedmen
of their re-manumitter. If a slave
is the bonitary property of one
person and the quiritary property
of another he can be made a Latin
by his bonitary owner, but his
re-manumission must be the act
of his quiritary owner, and even
if he acquires citizenship in other
I. §§ 28-35.] Q. M. LATINI AD CIVITATEM R. P. 31
ius Quiritium consecutus meus ways he becomes the freedman of
libertus fit. bonorum autem his quiritary owner. The praetor,
quae -, cum is morietur, however, invariably gives the
reliquerit tibi possessio datur, bonitary owner possession of the
quocumque modo ius Quiritium inheritance of such freedman. A
fuerit consecutus. quodsi cuius slave in whom his owner has both
et in bonis et ex iure Quiritium *??*?* and q^tary property,
., . r j • if twice manumitted by his owner,
sit manumissus, ab eodem sci- ire b the ^ manu.
licet et Latinus fieri potest et miiion4the Latin statuSj and by
ius Quiritium consequi. the second Koman citizenship.
Ulp. 3, 1-4.
§ 29. This enactment is stated by Ulpian to belong to the lex
Junia (Ulp. 3, 3), cf. § 18, comm.
Pronuntiaverit. The decision (sententia) of the judex in a judicium
ordinarium was either condemnatio or absolutio of the defendant.
In actions in which the case was left to the arbitrium of a judex
this was apparently preceded by pronuntiatio, a declaration of the
rights of the parties. This appears from the following, among
other passages: Sed et si fundum vindicem meum esse, tuque
confessus sis, perinde teneberis atque si dominii mei fundum esse
pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter
me et te controversia esset, juravero hereditatem meam esse, id
consequi debeo quod haberem si secundum me de hereditate pro-
nuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for
the plaintiff, if the defendant obeyed the arbitrium or provisional
order of the judex by making restitution, there was no subsequent
condemnatio. Cf. 4 § 49. In the form of real action, called a prae-
judicium, that is, a preliminary issue of fact, the pronuntiatio formed
the whole result of the trial, and was not followed by sententia.
Similarly, when a Latinus laid his claim of Eoman citizenship
before the praetor under this enactment of the lex Aelia Sentia, the
result of the extraordinaria cognitio of the praetor was merely
a pronuntiatio without any subsequent decretum.
§ 31. Pegasus and Pusius were consuls in the reign of Vespasian.
Inst. 2, 23, 5.
§ 32 &-§ 35. For references to the Visellian law cf. Cod. 9, 21
and 31. It was probably passed A.D. 24, when Serv. Cornelius
Cethegus and L. Visellius Varro were consuls (but see Mommsen,
Staatsr. 3, 424). Besides the method provided by the lex Aelia
Sentia, and by the Senatusconsultum mentioned in § 31, Latinus or
Latina might attain the Eoman citizenship under the following con-
ditions : —
1. By erroris causae probatio, i.e. if Latinus marry Peregrina,
believing her to be Latina or Civis, § 70 ; or Latina marry Pere-
32 DE PERSONIS [T. §§ 28-35.
grinus, believing him to be Latinus, § 69 ; or if Civis, believing
himself to be Latinus or Peregrinus, marry Latina, §71; or if Civis
marry Peregrinus, believing him to be Civis or Latinus ; or if Civis
marry Latina or Peregrina, believing her to be Civis Romana, § 67 ;
on birth of a child and on proof of this mistake, the Latinus or
Latina and their offspring acquire the citizenship.
2. By magistracy in a Latin colony Latinus becomes Civis Ro-
manus, §§ 95, 96.
3. By re-manumission (iteratio), i.e. on slaves under thirty when
manumitted acquiring Latinity by one of the private modes of
manumission, a subsequent manumission by one of the public
modes, vindicta, censu, or testamento, converted them from Latini
into Gives, § 35, and Ulp. 3, 4.
4. Under the lex Visellia above mentioned by six years' service
in the Eoman guards (si inter vigiles Komae sex annos militaverit,
Ulp. 3, 5). A decree of the senate made three years' service a
sufficient title, § 32 &. Compare the provision of 13 Geo. II, c. 3,
whereby 'every foreign seaman who in time of war serves two years
on board an English ship, and all foreign protestants serving two
years in a military capacity in the American colonies, are naturalized.
5. Under a constitution of Nero by building a house in Eome
(aedificio, Ulp. 3, 1), § 33.
6. Under an edict of Claudius by building a ship of 10,000 modii
and importing corn to Kome for six years, § 32 c, Sueton. Claud.,
Ulp. 3, 6. Compare the English law by which all foreign pro-
testants employed three years in the whale fishery are naturalized,
except as to capacity for public office.
7. Under a constitution of Trajan by building a mill and bake-
house for the supply of Rome (pistrino, Ulp. 3, 1), § 34.
8. By bearing three children, Ulp. 3, 1.
9. By imperial grant (beneficio principali, Ulp. 3, 2). This and
the previous mode of acquiring citizenship were perhaps men-
tioned by Gaius at the beginning of § 35.
Civitas Romana and Jus Quiritium are synonymous, but the
former term was always used when citizenship was conferred on
a Peregrinus, the latter generally when it was conferred on Latinus
Junianus : e. g. Quare rogo, des ei civitatem, est enim peregrinae
conditionis, manumissus a peregrina. . . . Idem rogo, des ius
Quiritium libertis Antoniae Maximillae . . . quod a te, petente
patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod
et ius Quiritium libertis necessariae mihi feminae et civitatem
Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid.
10, 5. Civitas Romana, however, was sometimes used in speaking
of the enfranchisement of Latinus, as we see from § 28.
I. §§ 36-41.] QVIBVS MANVMITTERE NON LICET. 33
§ 36. | Non tamen cuicum-
que uolenti manumittere licet.
Inst. 1, 6 pr.
§ 37. Nam is qui \ in
fraudem creditorum uel in
fraudem patroni manumittit,
nihil agit, quia lex Aelia Sentia
inpedit libertatem.
Inst. 1. c.,Ulp. 1,15.
§ 38. Item eadem lege mi-
nori xx annorum domino non
aliter manumittere permittitur,
quam [si] uindicta apud con-
silium iusta causa manumis-
sionis adprobata [fuerit].
Inst. 1, 6, 4.
§ 39. lustae autem causae
manumissionis sunt ueluti si
quis p'atrem aut matrem aut
paedagogum. aut conlactaneum
manumittat. sed et illae causae,
quas superius in seruo minore
xxx annorum exposuimus, ad
hiinc quoque casum de quo
loquimur adferri possunt. item
ex diuerso hae causae, quas in
minore xx annorum domino
rettulimus, porrigi possunt et
ad seruum minor em xxx an-
norum. Inst. 1, 6, 4, 5.
§ 40. Cum ergo certus modus
manumittendi minoribus xx
annorum dominis per legem
Aeliam Sentiam constitutus sit,
euenit ut qui xnn annos aetatis
expleuerit, licet testamentum
facere possit et in eo heredem
sibi instituere legataque relin-
quere possit, tamen, si adhuc
minor sit annorum xx, liberta-
tem seruo dare non possit.
Inst. 1, 6, 7.
§ 41. Et quamuis Latinum
facere uelit minor xx annorum
dominus, tamen nihilo minus
§ 36. Not every owner who is
so disposed is permitted to manu-
mit.
§ 37. An owner who would
defraud his creditors or his own
patron by an intended manumis-
sion, attempts in vain to manumit,
because the lex Aelia Sentia pre-
vents the manumission.
§ 38. Again, by a disposition of
the same statute, before attaining
twenty years of age, the only
process by which an owner can
manumit is fictitious vindication,
preceded by proof of adequate
motive before the council.
§ 39. It is an adequate motive
of manumission, if the father, for
instance, or mother or teacher or
foster-brother of the manumitter,
is the slave to be manumitted.
In addition to these, the motives
recently specified respecting the
slave under thirty years of age
may be alleged when the manu-
mitting owner is under twenty ;
and, reciprocally, the motives
valid when the manumitting
owner is under twenty are ad-
missible when the manumitted
slave is under thirty.
§ 40. As, then, the lex Aelia
Sentiaimposes acertain restriction
on manumission for owners under
the age of twenty, it follows that,
though a person who has com-
pleted his fourteenth year is com-
petent to make a will, and therein
to institute an heir and leave
bequests ; yet, if he has not at-
tained the age of twenty, he can-
not therein enfranchise a slave.
§ 41. And even to confer the
Latin status, if he is under the
age of twenty, the owner must
34
DE PERSONIS
[i. §§ 42-47.
debet apud consilium causam satisfy the council of the adequacy
probare et ita postea inter of his motive before he manumits
amicos manumittere. the slave in the presence of
witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17,
or the beginning of the eighteenth year (Inst. 1, 6, 7), finally per-
mitted minors to enfranchise by will as soon as they could make
a valid will, i.e. at the age of 14 (Novella) 119, 2). He mentions
that the lowest class of freedmen (dediticia libertas) had long been
obsolete, and formally abolished the second class (latina libertas),
converting informal modes of making Latinus, such as per epistolam,
inter amicos, into modes of making Civis Komanus, and declaring
the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst* 1 , 5.
DE LEGE FVFIA CANINIA.
§ 42. Praeterea lege Fufia
Caninia certus modus consti-
tutus est in seruis testamento
manumittendis. Inst. 1, 7, 1.
§ 43. Nam ei qui plures
quam duos neque plures quam
decem seruos habebit usque ad
partem dimidiam eiue numeri
manumittere permittitur ; ei
uero, qui plures quam x neque
plures quam xxx seruos habebit
usque ad tertiam partem eius
numeri manumittere permitti-
tur. at ei qui plures quam xxx
neque plures quam centum
habebit usque ad partem
quartam potestas manumit-
tendi rfatur. nouissime ei qui
plures quam c nee plures quam
D habebit, non plures manumit-
tere permittitur qua?rt quintain
partem; neque plures { )
tur : sed praescribit lex, ne cui
plures manumittere liceat quam
C. quodsi quis unum seruum
omnino aut duos habet, ad bane
legem non pertinet et ideo
liberamhabetpotestatern manu-
mittendi.
§ 42. Moreover, by the lex Fufia
Caninia a certain limit is fixed to
the number of slaves who can
receive testamentary manumis-
sion.
§ 43. An owner who has more
than two slaves and not more
than ten is allowed to manumit
as many as half that number ; he
who was more than ten and not
more than thirty is allowed to
manumit a third of that number ;
he who has more than thirty
and not more than a hundred is
allowed to manumit a fourth ;
lastly, he who has more than a
hundred and not more than five
hundred is allowed to manumit
a fifth : and, however many a man
possesses, he is never allowed to
manumit more than this number,
for the law prescribes that no one
shall manumit more than a hun-
dred. On the other hand, if a
man has only one or only two,
the law is not applicable, and the
owner has unrestricted power of
manumission.
I. §§ 42-47.] DE LEGE FVFIA CANINA
35
§ 44. Ac ne ad eos quidem
omnino haec lex pertinet qui
sine testam#ft£o manumittuni.
itaque licet iis, qui uindicta aut
censu aut inter amicos inanu-
mittunt, totam fainiliam libe-
rare, scilicet si alia causa non.
inpediat libertatem.
§ 46. Nam et si iestamento
scriptis in orbem seruis libertas
data sit, quia nullus ordo manu-
missionis inuenitur, nulli liberi
erunt, quia lex Fuh'a Caninia
quae in fraudem eius facta sint
rescindit. sunt etiam specialia
senatusconsulta,quibus rescissa
sunt ea quae in fraudem eius
legis excogitata sunt.
§ 47. In summa sciendum
est, (cum) lege Aelia Sentia
cautum sit, ut creditorum frau-
dandorum causa manumissi
liberi non fiant, hoc etiam ad
peregrines pertinere (senatus
ita censuit ex auctoritate
Hadriani), cetera uero iura eius
legis ad peregrines non per-
tinere.
§ 44. Nor does the statute apply
to any but testamentary manu-
mission, so that by the form
of vindicta or inscription on
the censor's register, or by at-
testation of friends, a proprietor
of slaves may manumit his whole
household, provided that there is
no other let or hindrance to im-
pede their manumission.
§ 46. If a testator manumits in
excess of the permitted number,
and arranges their names in a
circle, as no order of manumission
can be discovered, none of them
can obtain their freedom, as
both the lex Fufia Caninia itself
and certain subsequent decrees
of the senate declare null and
void all dispositions contrived
for the purpose of eluding the
statute.
§ 47. Finally, it is to be noted
that the provision in the lex Aelia
Sentia making manumissions in
fraud of creditors inoperative, was
extended to aliens by a decree of
the senate passed on the proposi-
tion of the Emperor Hadrian ;
whereas the remaining disposi-
tions of that statute are inapplic-
able to aliens.
§ 47. The lex Fufia Caninia, passed under Augustus (Sueton.
Aug. 40), to prevent the degradation of citizenship by testators abusing
their testamentary right of manumission, was generally called the
lex Furia Caninia before the manuscript of Gaius was re-examined
by Studemund ; it was abrogated by Justinian. See Inst. 1, 7.
The clause of the lex Aelia Sentia referred to in the text was retained
by Justinian. Inst. 1, 6 pr.
DE HIS QVI SVI VEL ALIENI IVEIS SINT.
§ 48. Sequitur de iure per-
sonarum alia diuisio. nam
quaedam personae sui iuris
sunt, quaedam alieno iuri
subiectae sunt. Inst. 1, 8 pr.
§ 48. Another division in the
law of Persons classifies men as
either dependent or independent
D 2
36
DE PERSONIS
[i. §§ 48-54.
§ 49. Rursus earum per-
sonarum, quae alieno iuri sub-
iectae sunt, aliae in po testate,
aliae in manu, aliae in mancipio
sunt. Inst. 1. c.
§ 50. Videamus mmc de his
quae alieno iuri subiectae sint ;
{nam,} si cognouerimus quae
ist&e personae sint, simul in-
tellegemus quae sui iuris sint.
O * Til
Inst. 1. c.
§ 51. Ac prius dispiciamus
de iis qui in aliena potestate
sunt. list. 1. c.
§ 52. In potestate itaque
sunt serui dorainorum. quae
quidem potestas iuris gentium
est : nam apud omnes peraeque
gentes animaduertere possumus
dominis in seruos uitae necis-
que potestatem esse ; et quod-
cumque per seruum adquiritur,
id domino adquiritur.
Inst. 1,8, 1.
§ 53. Sed hoc tempore neque
ciuibus Romanis, nee ullis aliis
hominibus qui sub imperio po-
puli Romani sunt, licet supra
modum et sine causa in seruos
suos saeuire ; nam ex constitu-
tions imperatoris Antonini qui
sine causa seruum suum occi-
derit, non minus teneri iubetur,
quam qui alienum seruum occi-
derit. sed et maior quoque
asperitas dominorum per eius-
dem principis constitutionem
coercetur ; nam consultus a
quibusdam praesidibus pro-
uinciarum de his seruis, qui ad
fana deorum uel ad statuas
principum confugiunt, prae-
cepit ut si intolerabilis uideatur
dominorum saeuitia cogantur
seruos suos uendere. et utrum-
que recte fit ; male enim nostro
iure uti non debemus; qua
§ 49. Those who are dependent
or subject to a superior, are either
in his power, in his hand, or in
his mancipation.
§ 50. Let us first explain what
persons are dependent on a
superior, and then we shall know
what persons are independent.
§ 51. Of persons subject to a
superior, let us first examine who
are in his power.
§ 52. Slaves are in the power of
their proprietors, a power recog-
nized by jus gentium, since all
nations present the spectacle of
masters invested with power of
life and death over slaves; and
(by the Roman law) the owner
acquires everything acquired by
the slave.
§ 53. But in the present day
neither Roman citizens, nor any
other persons under the empire
of the Roman people, are per-
mitted to indulge in excessive or
causeless harshness towards their
slaves. By a constitution of the
Emperor Antoninus, a man who
kills a slave of whom he is
owner, is as liable to punishment
as a man who kills a slave of
whom he is not owner : and in-
ordinate cruelty on the part of
owners is checked by another
constitution whereby the same
emperor, in answer to inquiries
from presidents of provinces con-
cerning slaves who take refuge at
temples of the gods, or statues
of the emperor, commanded that
on proof of intolerable cruelty a
proprietor should be compelled to
sell his slaves: and both ordi-
nances are just, for we ought not
I. §§ 48-54.] DE POTESTATE DOMINICA 37
ratione et prodigis interdicitur to make a bad use of our law-
bonorum suoruin administratio. ful rights, a principle recognized
Inst. 1,8, 2. *n the interdiction of prodigals
from the administration of their
fortune.
§ 54. Ceterum cum apud § 54. But as citizens of Rome
ciues Romanes duplex sit domi- may have a double kind of domi-
nium (nam uel in bonis uel ex nion, either bonitary or quiritary,
iure Quiritium uel ex utroque or a union of both bonitary and
iure cuiusque seruus esse in- quiritary dominion, a slave is in
telleg^tur), ita demum seruum the power of an owner who has
in potestate domini esse dice- bonitary dominion over him, even
mus, si in bonis eius sit, etiamsi unaccompanied with quiritary
simul ex iure Quiritium eius- dominion ; if an owner has only
dem non sit ; narn qui nudrfm ^are q^itary dominion he is not
ius Quiritium in seruo habet, d to have the slave m hls
is potestatem habere non in-
tellegitur.
§§ 52, 53. The condition of the slave was at its worst in the golden
period of Roman history. As soon as Rome found her power
irresistible she proceeded to conquer the world, and each stage of
conquest was the reduction of a vast portion of mankind to slavery.
30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator,
the captor of Tarentum ; 150,000 Epirots by Paulus Aemilius, the
subjugator of Epirus. Julius Caesar retrieved his shattered fortunes
by enormous operations in the slave market during his campaign
in Gaul. Thus, unfortunately for the slave, the slave market was
continually glutted and slave life was cheap. The condition of the
slave gradually but slowly improved under the emperors. The
killing of the slave of another was not an offence under the lex
Cornelia de sicariis itself, but by the interpretation of later times
it was brought under this law. A lex Petronia of uncertain date,
but which must have been passed before the destruction of Pompeii,
A. D. 79, being mentioned in an inscription found there, required
a slave -owner to obtain the permission of a magistrate before
exposing a slave to be torn to pieces by wild beasts, and only
allowed such permission to be granted for some offence committed
by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master
killing his own slaves who fell sick, and enacted that the exposure
of a slave to perish in his sickness should operate as a manumission,
conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is
said to have deprived proprietors of the power of putting slaves
to death without a judicial sentence, Spartian, Had. 18 (but see on
this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a
38 t)E PERSONIS [i. §§ 48-54.
master who killed his own slave to be responsible in the same way
as if he had killed the slave of another, cf. § 53, 3 § 213, i. e. guilty
of murder, and subject to the penalty of the lex Cornelia de sicariis.
We read in Justinian's Digest : Qui hominem occiderit punitur non
habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2.
The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be
remembered, however, that none of these laws deprive the master
of the right of punishing his slaves himself for domestic offences.
Hadrian prohibited the castration of a slave, consenting or not con-
senting, under penalty of death, Dig- 48, 8, 4, 2. Antoninus Pius also
protected slaves against cruelty and personal violation, Dig. 1, 6, 2,
obliging the master, as we see by the text, to manumit them on
account of his maltreatment. The Digest, 1, 6, 1, quoting § 53,
after sine causa, interpolates, legibus cognita, thus placing slaves
under the protection of the law, and almost recognizing in slaves
some of the primordial rights of humanity, except that, as already
observed, obligation does not necessarily imply a correlative right.
Koman law to the end, unlike other legislations which have recog-
nized forms of slavery, refused to admit any rights in the slave.
Florentinus, however, not long after the time of Gaius, admitted
that slavery, though an institution of jus gentium, was a violation
of the law of nature. Servitus est canstitutio juris gentium qua
quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian
says the same : Quod attinet ad jus civile, servi pro nullis habentur,
non tamen et jure naturali ; quia quod ad jus naturale attinet, omnes
homines aequales sunt, Dig. 50, 17, 32. 'Before the Civil law a
slave is nothing, but not before the Natural law ; for in the eye of
Natural law all men are equal.' The belief in a Natural law, more
venerable than any Civil law, was very prevalent in the ancient
world, and one of the principal contributions of Philosophy to
civilization.
The absolute privation of all rights was sometimes expressed by
saying that a slave has no persona, caput, or status : e. g. Servos
quasi nee personam habentes, Nov. Theod. 1 7. Servus manumissus
capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum
servus manumittitur, quia servile caput nullum jus habet, ideo nee
minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The
word ' persona,' however, is sometimes applied to slaves ; e. g. in
personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput
in the last but one of the above-quoted passages.
But though a Koman slave was incapable of being invested with
rights for himself, yet he often filled positions of considerable
importance both in public and private life and was allowed by his
owner to hold a considerable peculium. It was because slaves were
i. § 55.] DE PATRIA POTESTATE 39
ordinarily employed as procurators in commercial transactions,
that Eoman law failed to develop the principle of contractual
agency, as it is understood in modern systems of jurisprudence.
DE PATEIA POTESTATE.
§ 55. Item inpotestatenostra § 55. Again, a man has power
sunt liberi nostri quos iustis over his own children begotten
nuptiisprocreauimus. quodius i* civil wedlock, a right peculiar
premium ciuium Romanorum to citizens of Borne, for there is
estf fere enim nulli alii sunt f ff el? any other nation where
r ao'. . , . fll. fathers are invested with such
homines qu* talem m nhos r over their ^^ ag afc
suos habent potestatem qualem £Qme and ^ the kte Emperor
nos habemus; idque dinus Hadrian deciared in the edict he
Hadnanws edicto quod pro- published respecting certain peti-
posuit de his, qui sibi liberisque tioners for a grant of Roman citi-
suis ab eo ciuitatem Romanam zenship to themselves and their
petebant, significauit. nee me children ; though I am aware
praeterit Galatarum gentem that among the Galatians parents
credere in potestate parentum are invested with power over
liberos esse. Inst. l}9pr. their children.
§ 55. The most peculiar portion of the Roman law of status is
that which refers to patria potestas, or the relation of paterfamilias
to filiusfamilias. Patria potestas was founded on consuetudinary
law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and
may be considered under two heads, (1) as regarding the person
of the son, (2) as regarding proprietary rights acquirable by
the son.
1. Over the person of the child the father had originally a power
of life and death. Patribus jus vitae in liberos necisque potestas
olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parri-
cidiis, enumerating the persons who could be guilty of parricide, or
the murder of a blood relation, omits the father, Dig. 48, 9. Com-
pare also the formula of Adrqgatio, §§ 97-107, commentary. But in
later times this power was withdrawn. Hadrian condemned to
deportation a father who in the hunting-field killed his son who
had committed adultery with his stepmother, Dig. 48, 9, 5. Con-
stantine, A.D. 319, included killing by a father under the crime of
parricide, Cod. 9, 17. Fathers retained the power of moderate
chastisement, but severe punishment could only be inflicted by the
magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emen-
dationis excedat, placet enormis delicti reos dedi judicum notioni,
Cod. 9, 15. Trajan compelled a father to emancipate a son whom
he treated with inhumanity, Dig. 37, 12, 5. It was originally at
40 DE PERSONIS [i. § 55.
the option of the parent whether he would rear an infant or expose
it to perish, but in later times such exposure was unlawful, as
was declared by Valentinian, Valens, and Gratian, A. D. 374, Cod.
8, 51, 2.
Originally also parents had the power of selling (mancipandi)
their children into bondage, thus producing a capitis minutio, or
degradation of status. The patriarchs of the Roman race may
perhaps have been slave-dealers who, like some savage tribes in
Africa and elsewhere, trafficked in the bodies of their own children,
but we must note that the bondage into which a Roman father sold
his children was, at least at the time at which this institution is
known to us, a limited degree of subjection : the mancipation, which
if made three times released a son from his father's power according
to a provision of the Twelve Tables, could only be made to another
Roman citizen, and the bondsman continued to be liber and civis.
And this power also was withdrawn in more civilized times. A
law of Diocletian and Maximian, A.D. 294, declares the sale, dona-
tion, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript
of one of the Antonines commences in the following terms, Cod.
7, 16, 1 : 'You are guilty, by your own admission, of an unlawful
and disgraceful act, as you state that you sold your freeborn
children.' Justinian increased the penalties of the law against
creditors who took possession of the freeborn child of a debtor
as a security for a debt. He enacted that the creditor should
forfeit the debt, should pay an equal sum to the child or parent,
and in addition should undergo corporal punishment, Novella,
134, 7. In the time of Gaius, the only genuine sale of a child into
bondage was in the case of noxal surrender, i. e. when a father sued
for the delict of a child, in lieu of damages, surrendered his delin-
quent son or daughter as a bondsman (mancipium) to the plaintiff,
§ 140. The sale of the child in adoption and emancipation was
merely fictitious ; even noxal surrender was practically obsolete
in the time of Justinian, by whom it was formally abolished,
Inst. 4, 8, 7. Constantine, however, A. D. 329, in cases of extreme
poverty permitted parents to sell their children immediately after
birth (sanguinolentos), and this constitution was retained in the
code of Justinian, Cod. 4, 43, 2.
2. In respect of property, filiusfamilias was capable of obligation
but not of right ; he could be debtor but not creditor ; in any
transaction where an independent person (sui juris) would have
been creditor, filiusfamilias was merely a conduit-pipe through
which a right vested in his father as creditor or proprietor. Even
in domestic relations filiusfamilias could only figure as inferior, not
as superior; he owed obedience, but could not exercise command
I. § 55.] DE PATRIA POTESTATE 41
(jus, in the special sense which it has in the phrases, sui juris, alieni
juris) ; he could only be an instrument by which his father acquired
a right of command. Thus, filiusfamilias had commercium, and
could take by mancipatio, but the property he thus took vested in
his father ; he could make a valid contract, but the contractual
right vested in his father ; he had testamentifactio, that is, he could
be witness, libripens, familiae emptor, but he could not make a will,
for he had no property to leave ; and if he took under a will as
legatee or heir, the legacy or succession vested in his father: cf. 2
§ 87, 3 § 163, comm. He had the other element of civitas, con-
nubium ; that is> he could contract a civil marriage and beget civil
children ; but the patria potestas over these children vested not in
the father but in the grandfather, and if the marriage was accom-
panied with power of hand (manus), marital power over the wife,
this vested not in the husband but in the husband's father. Any
property which the son was allowed by his father to manage was
called his peculium, i.e. was held on the same terms as property
which a slave administered by permission of his proprietor. In
respect of debts which he incurred, the son did not act as conduit-
pipe, but (except for a loan of money, which the Sc. Macedonianum
made irrecoverable) was liable in his own person, Dig. 44, 7, 39.
' A son under power incurs obligation by the same titles, and may
be sued on the same grounds of action as an independent person.'
The same rule applied to the son as to the slave: Melior conditio
nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17,
133. 'The melioration of his proprietor's condition is in the power
of a slave, but not the deterioration.'
In his public functions, filiusfamilias was entirely beyond the
sphere of patria potestas. Quod ad jus publicum attinet non sequitur
jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or
as judex in a suit to which his father was a party. He could
even preside as magistrate over his own adoption or emancipation :
Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum
vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which
makes it doubtful how far political functions were suspended
even by the state of mancipium or bondage). He could also
be appointed guardian (tutor), for guardianship (tutela) was held
to be a public function, Dig. 1 , 6, 9. 'A filiusfamilias in his public
relations is deemed independent, for instance, as magistrate or as
guardian.'
The above-stated incapacities of filiusfamilias were subject, how-
ever, to certain exceptions and modifications, which may now be
briefly considered.
a. In certain cases filiusfamilias had an anomalous right of suing
42 DE PERSONIS [i. § 55.
in his own name (suo nomine), i.e. not merely as procurator or
attorney of his father, and even in opposition to his father's
wishes, Dig. 44, 7, 9. 'A filiusfamilias can only, according to
Julian, sue in his own name for outrage, by interdict for violent
or clandestine disturbance, for a deposit, and for a thing he has
lent for use.' These suits, which, in spite of the statement in
the text, were not the only, though perhaps the oldest, actions
maintainable by a person under power, deserve a brief explana-
tion. Without the right to Honour, one of the primordial
rights of humanity, a man is scarcely a freeman, and, accordingly,
this right vests definitively in filiusfamilias, and does not again
pass out of him to vest in his father. Any dishonouring outrage,
therefore, gave filiusfamilias a right of bringing a civil action,
called actio injuriarum, in his own name, though the pater-
familias as a rule maintained the action both on his own account
and that of his son ; if, however, he was unable to do so, or his
character was dubious, the son could proceed by himself (cf. 3 § 221,
and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that
he thereby recovered, being in the nature of property, were recovered
for his father. The son under power was recognized, then, as
invested with a vindictive right, though not with a proprietary
right. The actio injuriarum was one in bonum et aequum concepta
(compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the
terms of the formula (conceptio) directed the judex to assess the
damages not on any strict principle of law, but by his own.
sense of natural equity (aequum et bonum), and this form may
have helped to make the action maintainable by one who was
generally incompetent to sue. The interdict quod vi aut clam
was maintainable by filiusfamilias on the same principle as the
actio injuriarum, being a means of vindicating a dishonouring
outrage inflicted on filiusfamilias by some violent disturbance of real
immovable property in defiance of his prohibitio or summons to
stay operations and let the matter abide the result of a judicial trial.
Cf. 4 §§ 138-170, comm. On the same principle a filiusfamilias
disinherited or passed over in the will of his mother or maternal
grandfather, as such disinheritance or pretermission was an implied
imputation of turpitude or unworthiness and therefore dishonouring,
might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate
his honour by impeaching the will of inofficiositas (immorality, or
want of natural affection), although such querela inofficiosi testa-
menti, being an action having a right to property for its object, would
not otherwise have been maintainable by a filiusfamilias. If the
plaintiff filiusfamilias could show that the disinheritance or omission
was not due to his own demerits, he invalidated the will by a
I. § 55.] DE PATKIA POTESTATE 43
fictitious presumption of the testator's lunacy and made the testator
intestate ; and thus filiusfamilias vindicated his own character, though
whatever share he recovered in the intestate succession vested in his
father. Cf. 2 §§ 152-173, comm. ; Inst. 2, 18.
The right of filiusfamilias to sue by actio commodati or depositi
was founded on a different principle. Suppose that filiusfamilias
had borrowed or hired a thing that he afterwards lent or deposited ;
his father, not being responsible for his son's debts, would not be
interested in the recovery of the thing, and therefore was not
entitled to sue the depositary or borrower : the soil, however, would
be answerable to the original lender or letter, and accordingly was
allowed to sue in his own name. To avoid, however, contravening
the civil law by affirming a proprietary right vested in a filiusfami-
lias, he did not sue by a formula in jus concepta, i. e. of the form, si
paret oporte,re, 'if the plaintiff establish a right,' but by a formula
in factum, of the form, si paret factum esse, ' if the plaintiff establish
a fact.' It is remarkable that Gaius instances precisely the actio
commodati and the actio depositi as having two forms, one in jus
and another in facturA (4 § 47) ; and we may conjecture that the
latter was invented to be used under these very circumstances by
filiusfamilias.
&. The latter periods of Eoman law present a gradual emanci-
pation of filiusfamilias by successive inventions of new kinds of
peculium. As early as the time of Augustus filiusfamilias was
allowed to dispose freely by will of his earnings in military service,
castrense peculium, which came to be treated in all respects as his
individual property, except that till the time of Justinian the rules
of intestate succession did not apply to it. Filiifamilias in castrensi
peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2, Subsequently
to the time of Gaius, under Constantine and his successors, the earn-
ings of filiifamilias in the civil service of the State, in holy orders, in
the liberal professions, were assimilated to their earnings in the army,
and came to be called peculium quasi castrense. Further, in the time
of Constantine, it was also established that whatever came to the
son from his mother or, as the law was under Justinian, from the
maternal line, or from any source but the paternal estate (ex re
patris), should be acquired for the father, and held by him only as a
usufruct or life estate, while, subject to this, the son had the owner-
ship of it (peculium adventicium). Peculium adventicium thus
included everything acquired by the son whiph was not castrense
peculium, nor quasi-castrense peculium, nor acquired by means of
the father's property (ex re patris). Only this latter peculium
derived from the paternal estate continued, under the name of
peculium profecticium, subject to the old rules, and belonged in
44
DE PERSONIS
[i. §§ 56-64.
absolute property to the father. Cf. 2 § 87, comm. ; Inst. 2, 9, 1 ; 3,
19, 6; 4, 8, 7; 3, 10, 2, 28 pr.
The Gallic race, of which the Galatians were a branch, are men-
tioned by Caesar as having the institution of patria potestas: Viri
in uxores, sicuti in liberos, vitae necisque habent potestatem, De
Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may
perhaps allude to the peculiarity of their law : ' The heir, as long as
he is a child, differeth nothing from a servant (slave), though he be
lord of all' ; 4, 1, though the Apostle seems to be directly referring
to the cognate institution of guardianship.
NVPTIIS.
§ 56. I ,1 si
ciues Romanas uxores duxerint,
uel etiam Latinas peregrinasue
cum quibus conubium habeani ;
cum enim conubium id etiiciat,
ut liberi patris condicionem
sequantur, euenit ut non
(solum} ciues Romani fiant,
sed etiam in potestate patris
sint. Inst. 1,10 pr.
§ 57. Unde et ueteranis qui-
busdam concedi solet princi-
palibus constitutionibus conu-
bium cum his Latinis pere-
grinisue quas primas post
missionem uxores duxerint ; et
qui exeo matrimonio nascuntur,
et ciues Romani et in potestate
parentum fiunt.
§ 58. | Non tamen omnes
nobis uxores ducere licet ; \ nam
a quarundam nuptiis abstinere
debemus ; Inst. 1. c.
§ 59. inter eas enim per-
sonas quae parentum libero-
rumue locum inter se optinent
nuptiae contrahi non possunt,
nee inter eas conubium est,
ueluti inter patrem et filiam,
uel inter matrem et filium, uel
inter auum et neptem; et si
§ 56. A Roman citizen contracts
civil wedlock and begets children
subject to his power when he
takes to wife a citizen of Rome
or a Latin or alien with whom a
Roman has capacity of civil wed-
lock ; for as civil wedlock has the
effect of giving to the children the
paternal condition, they become
by birth not only citizens of
Rome, but also subject to the
power of the father.
§ 57. And for this purpose vete-
rans often obtain by imperial con-
stitution a power of civil wedlock
with the first Latin or alien
woman they take to wife after
their discharge from service, and
the children of such marriages
are born citizens of Rome and
subject to paternal power.
§ 58. But it is not any woman
that can be taken to wife, for
some marriages are prohibited.
§ 59. Persons related as ascend-
ent and descendent are incapable
of lawful marriage or civil wed-
lock, father and daughter, for in-
stance, mother and son, grand-
father and granddaughter ; and if
such relations unite, their unions
are called incestuous and ne-
farious; and so absolute is the
I. §§ 56-64.]
DE NVTTIIS
45
tales personae inter se coierint,
nefarias et incestas nuptias
contraxisse dicuntur. et haec
adeo ita- sunt, ut quamuis per
adoptionem parentum libero-
rumue loco sibi esse coeperint,
non possint inter se matrimonio
coniungi, in tantum, ut etiam
dissoluta adoptione idem iuris
maneat ; itaque earn quae mihi
per adoptionem filiae aut neptis
loco esse coeperit non potero
uxorem ducere, quamuis earn
emancipauerim. Inst. 1. c.
§ 60. Inter eas quoque per-
sonas quae ex transuerso gradu
cognatione iunguntur est quae-
dam similis obseruatio, sed non
tanta.
§ 61. Sane inter fratrem et
sororem prohibitae sunt nuptiae,
siue eodem patre eademque ma-
tre nati fuerint, siue alter utro
eorum : sed si qua per adoptio-
nem soror mihi esse coeperit,
quamdiu quidem constat ado-
ptio, sane inter me et earn
nuptiae non possunt consis-
tere ; cum uero per emancipa-
tionem adoptio dissoluta sit,
potero earn uxorem ducere ;
sed et si ego emancipatus
fuero, nihil inpedimento erit
nuptiis.
§ 62. Fratris filiam uxorem
ducere licet, idque primum in
usum uenit, cum diuus Claudius
Agrippinam fratris sui filiam
uxorem duxisset; sororis uero
filiam uxorem ducere non licet,
et haec ita principalibus co-nsti-
tutionibus significantur. Item
amitam et materteram uxorem
ducere non licet.
Inst. 1,10,3-5.
§ 63. Item earn quae mihi
quondam socrus aut nurus aut
priuigna aut nouerca fuit. ideo
rule that merely adoptive as-
cendents and descendents are
for ever prohibited from inter-
marriage, and dissolution of the
adoption does not dissolve the
prohibition : so that an adoptive
daughter or granddaughter can-
not be taken to wife even after
emancipation.
§ 60. Collateral relatives also
are subject to similar prohibi-
tions, but not so stringent.
§61. Brother and sister, indeed,
are prohibited from intermarriage
whether they are born of the same
father and mother or have only
one parent in common: butthough
an adoptive sister cannot, during
the subsistence of the adoption,
become a man's wife, yet if the
adoption is dissolved by her
emancipation, or if the man is
emancipated, there is no impedi-
ment to their intermarriage.
§ 62. A man may marry his
brother's daughter, a practice first
introduced when Claudius married
his brother's daughter Agrippina,
but may not marry his sister's
daughter, a distinction laid down
in imperial constitutions, nor may
he marry his father's sister or his
mother's sister.
§ 63. He may not marry one
who has been his wife's mother
or his son's wife or his wife's
46
DE PERSONIS
[i. §§ 56-64,
autem diximus ' quondam,' quia
si adhuc constant eae nuptiae,
per quas tails adfinitas quaesita
est, alia ratione mihi nupta
esse non potest, quia neque
eadem duobiis nupta esse potest,
neque idem duas uxores habere.
Inst. 1, 10, 6.
§ 64. Ergo si quis nefarias
atque incestas nuptias con-
traxerit, neque uxorem habere
uidetur neque liberos ; itaque
hi qui ex eo coitu nascuntur
matrem quidem habere uiden-
tur, patrem uero non utique:
nee ob id in potestate ems
(sunt, sed tales} sunt quales
sunt hi quos mater uulgo con-
cepit ; nam et hi patrem habere
non intelleguntur, cum is etmm
incertus sit ; unde solent spurii
filii appellari, uel a Graeca uoce
quasi (nropabrjv concepti, uel
quasi sine patre filii.
Inst. 1, 10, 12.
daughter or his father's wife. I
say, one who has been so allied,
because during the continuance of
the marriage that produced the
alliance there would be another
impediment to the union, for a
man cannot have two wives nor
a woman two husbands.
§ 64. A man who contracts a
nefarious and incestuous marriage
is not deemed to have either a
wife or children ; for the offspring
of such a union are deemed to
have a mother but no father,
and therefore are not subject to
paternal power ; resembling chil-
dren born in promiscuous inter-
course, who are deemed to have
no father, because their true father
is uncertain, and who are called
bastards either from the Greek
word denoting illicit intercourse
or because they are fatherless.
In any treatise on the law of marriage that we open we shall
meet the expression, the marriage contract ; and this suggests the
inquiry, is marriage a contract, and, if so, to which class of Roman
contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman
marriage to be referred? Most writers assume that it was a Con-
sensual contract, on the strength of texts like the following : Nuptias
non concubitus sed consensus facit, Dig. 35, 1, 15. 'Marriage does
not depend on cohabitation, but on consent.' Ortolan, however,
remarks that consensual contracts could be formed by absent con-
tractors, Inst. 3, 22, 2, whereas a marriage could not be contracted
in the absence of the wife, Paul, 2, 19, 8 ; and shows that, besides
the consent of the parties, delivery of possession of the wife to the
husband was required, from which he infers that Roman marriage
was not a Consensual but a Real contract. It is true that marriage
might be contracted in the absence of the husband ; but this was
only under certain conditions, Dig. 23, 22, 5. 'A man in his
absence may marry by letter or message, provided the woman is
led to his house : a woman in her absence cannot marry by letter
or message, for the leading must be to the husband's house, as the
domicile of the married pair.' And precisely the same conditions
I. §§ 56-64] DE NVPTIIS 47
were sufficient in other cases to constitute delivery of possession,
Dig. 41, 2, 18, 2. 'If a vendor deposit any article in my house by
my order, I have possession of it though I have never touched
it.' Consensus, then, in the above-quoted passage, is not opposed
to delivery of possession, but to cohabitation, or to the use of
certain words or certain documents, or to the solemn and grace-
ful ceremonial with which custom surrounded the matrimonial
union.
Eeal contracts, however, are executory on one side and executed
on the other, whereas in the conjugal relation both parties are on
the same footing in respect of execution ; and we may ask whether
marriage is a contract at all ; whether it does not rather fall under
the opposite category of alienation or conveyance. Instead of finding
its analogon in locatio-conductio or societas (consensual contracts)
or pignus or commodatum (real contracts), may we not rather, with
Savigny, find it in transfer of dominion or other creations of real
right, such as adoption, the concession of patria potestas, or emanci-
pation ? This seems the truer view, and if we use the expression,
marriage contract, we must use the term contract not in a specific
sense, as opposed to conveyance, but in the generic sense of
bilateral disposition (as opposed to unilateral disposition, e.g. testa-
tion), a sense embracing both contract proper and conveyance, and
extending beyond the sphere of Property into the relations of
domestic life. Contract proper and conveyance, though generally
contrasted in jurisprudence, have much in common. If contract
in its narrower sense is defined to be the concurrence of two
manifestations of will creating a jus in personam, and conveyance
the concurrence of two manifestations of will creating a jus in
rem, the concurrence of two manifestations of will creating a jus
is an element common to both terms of the comparison, and this
common element may be denominated in a generic sense a con-
tract. Contract in the narrower sense may then be distinguished
as an obligative contract and conveyance as a translative contract,
and the latter head will include the contract of marriage, if we
continue to employ this expression.
As in respect of property or dominion we find in Eoman law the
distinction of Quiritary and Bonitary, that is, of civil and gentile,
ownership, so in respect of the conjugal relation we find the distinc-
tion of Roman or civil marriage (connubium, justae nuptiae, justum
matrimonium) and gentile marriage (nuptiae, matrimonium), of
which the former alone was valid at civil law (connubium est uxoris
jure ducendae facultas, Ulpian, 5, 3 ; ' connubium is the capacity of
marriage valid by civil law ') and capable of producing patria potestas
and agnatio, though the latter produced legitimate children (justi
48 DE PERSONIS [i. §§ 56-64.
as opposed to naturales liberi) and cognatio or natural relation-
ship.
Capacity of civil marriage (connubium) is (a) absolute and (&)
relative. (a) Only citizens have the absolute capacity of civil
marriage, and such Latins and aliens as are specially privileged,
§ 56 : slaves are incapable both of civil and gentile marriage.
(6) Capacity of civil marriage is, however, always relative to another
person who forms the other party to the union. A citizen only
has connubium with a citizen or with such Latins and aliens
as are specially privileged ; and, before the lex Papia Poppaea
was passed, a freeborn citizen (ingenuus) had no connubium
with a citizen by manumission (libertinus). Lege Papia cavetur
omnibus ingenuis, praeter senatores eorumque liberos libertinam
uxorem habere licere, Dig. 23, 2, 23. 'The lex Papia permits all
freeborn citizens, except senators and their children, to marry freed-
women.'
§§ 58-63. The prohibition of marriage between collateral rela-
tions, originally perhaps extended as far as there were legal names for
the relationship, i. e. as far as the sixth degree, for Tacitus mentions
that second cousins were once incapable of intermarriage, sobrinarum
diu ignorata matrimonia, Ann. 1 2, 6 ; and Livy (20, see Hermes, 4, 372),
in a fragment discovered by Krueger, expressly says that marriage
was once restricted within this limit. ' P. Coelius patricius primus
ad versus veterem morem intra septimum cognationis gradum duxit
uxorem. Ob hoc M. Eutilius plebeius sponsam sibi praeripi novo
exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut
patres territi in Capitolium perfugerent ' (cf. Karlowa, Rom. Rechtsg.,
p. 175) ; but though marriages within this limit may still have been
regarded as contrary to religion (fas), the law (jus) was gradually
relaxed. The prohibition was subsequently reduced to the fourth
degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian,
5, 6, with this restriction, however, that if one of the collaterals was
only removed by one degree from the common ancestor (stipes com-
munis), he was regarded as a quasi ascendent (loco parentis) and
incapable of intermarriage at any degree : thus, a man could not
marry his brother's or sister's granddaughter, though only related
in the fourth degree, Cod. 5, 4, 17. Degrees in the direct line were
reckoned by counting the generations or births to which a person
owed his descent from an ancestor : thus, a man is one degree from
his father, two from his grandfather : in the transverse or collateral
line, by adding the degrees which separate each collateral from the
common stock; thus, a man is two degrees from his sister, three
from his niece.
Constantinus, A. D. 355, restored the ancient law and prohibited
1. §§ 65-75.] DE ERRORIS CAVSAE PROBATIONE 49
marriage with a brother's daughter as incestuous, Cod. Theod.
3, 12, 1.
Affinity (affinitas) is the relationship of a person to the kin
(cognates) of a spouse. The husband is allied to the kin of the wife,
the wife to the kin of the husband ; but there is no alliance between
the kin of the husband and the kin of the wife. The following are
some of the names given to these relationships. In the ascending
line the father and mother of the wife or husband are socer and
socrus (father-in-law, mother-in-law), and in relation to them the
husband of the daughter and wife of the son are gener and nurus
(son-in-law, daughter-in-law). In the descending line the children
of the spouse are privignus and privigna (step-son, step-daughter),
and in relation to them the husband of the mother and the wife of
the father are vitricus and noverca (step-father and step-mother).
In the collateral line the husband's brother is levir (brother-in-law),
the husband's sister is glos (sister-in-law). Intermarriage with affines
in the direct line, or their ascendents or descendents, was absolutely
prohibited ; collateral alliance appears to have been no impediment
in the time of Gaius, but at a later period marriage with a deceased
brother's wife or a deceased wife's sister was forbidden, Cod. Theod.
2, 3, 12; Cod. 5, 5, 5.
To the marriage of a filius- or filia-familias the consent of the
father was required : but if he withheld it without a reason he
could be compelled by the magistrate to give it, and, in the case of
a daughter, to provide a dower, Dig. 23, 2, 19: one of several in-
stances in which, as the condition of the validity of a title, when
a voluntary action could not be obtained, the legislator substituted
a compulsory action, instead of simply declaring the action unne-
cessary. See § 190, comm.
DE ERKOKIS CAVSAE PROBATIONE.
§ 65. I Aliquando autem § 65. It sometimes happens
euenit ut liberi qui ttatim ut that children when first born are
7ia|ti sunt parentum in pote- not in their father's power, but
state non fiant, ii postea tamen are subsequently brought under
redigantur in potestatem. ik
Inst. 1,10,13.
§ 66. Veluti^si Latinua ex § 66> Thus, under the lex Aelia
lege Aelia Sentia uxore ducta sentia a Latin who marries and
tilium procreauerit aut Latinum begets a son of Latin status by
ex Latina aut ciuem Romanum a Latin mother, or a citizen of
ex ciue Romana, non habebit Eome by a Eoman mother, has
eum in potestate ; sed si postea, not power over him ; but on proof
causa probB,i&ius{Qui'ritiurtiy of his case as required by the
50
DE PEESONIS
[i. §§65 -75.
consecitfats fuerit, simul eum in
potestate sua habere incipit.
§ 67. Item si ciuis Romanus
Latinam autperegrinamuxorem
duxerit per ignorantiam, cum
earn ciuem Romanam esse cre-
deret, et filium procreauerit,
hie non est in potestate eius,
quia ne qmdem ciuis Romanus
est, sed aut Latinus aut pere-
grinus, id est eius condicionis
cuius et mater fuerit, quia non
aliter quisque ad patris con-
dicionem accedit, quam si inter
patrern et matrem eius conu-
bium sit; sed ex senatuscon-
sulto permittitur causam erroris
probare, et ita uxor quoque et
films ad ciuitatem Romanam
perueniunt, et ex eo tempore
incipit filius in potestate patris
esse. idem iuris est, si earn per
ignorantiam uxorem duxerit
quae dedi^ciorum numero est,
nisi quod uxor non fit ciuis
Romana.
§ 68. Item si ciuis Romana
per errorem nupta sit peregrine
tamquam ciui Romano, per-
mittitur ei causam erroris pro-
bare, et ita filius quoque eius
et maritus ad ciuitatem Ro-
manam perueniunt, et aeque
simul incipit filius in potestate
patris esse. idem iuris est, si
peregrine tamquam Latino ex
lege Aelia Sentia nupta sit ;
nam et de hoc specialiter se-
natusconsulto cauetur. idem
iuris est aliquatenus, si ei qui
deditficiorum numero est tam-
quam ciui Romano aut Latino
e lege Aelia Sentia nupta sit ;
nisi quod scilicet qui dediti-
ciorum numero est, in sua con-
dicione permanet, et ideo filius,
quamuis fiat ciuis Romanus,
statute, he becomes a Roman citi-
zen along with his son, who is
henceforth subject to his power.
§ 67. Again, if a Roman citizen
marry a Latin or an alien woman,
in a mistaken belief that she is a
Roman citizen, the son whom he
begets is not in his power, not
indeed being born a Roman citi-
zen, but a Latin or an alien, that
is to say, of the same status as his
mother, for a child is not born
into the condition of his father
unless his parents had capacity
of civil marriage : but a senatus-
consult allows the father to prove
a cause of justifiable error, and
then the wife and son become
Koman citizens, and the son is
thenceforth in the power of the
father. The same relief is given
when a Roman citizen under a like
misconception marries a freed-
woman having the status of a
surrendered foe, except that the
wife does not become a Roman
citizen.
§ 68. Again, a female Roman
citizen who marries an alien, be-
lieving him to be a Roman citizen,
is permitted to prove a cause of
justifiable error, and thereupon
her son and husband become Ro-
man citizens, and simultaneously
the son becomes subject to the
power of his father. Similar relief
is given if she niarry an alien as
a Latin intending^) comply with
the conditions of the lex Aelia
Sentia, for this case is specially
provided forinthesenatusconsult.
Similar relief is given to a certain
extent if she many a freedman
having the status of a surrendered
foe instead of a Roman citizen,
or instead of a Latin, whom she
intended to marry according to
the provision of the lex Aelia
Sentia, except that the freedman
i; §§ 65-75.] DE ERRORIS CAVSAE PROBATIONE 51
in potestatem patris non redi-
gitur.
§ 69. Item si Latina pere-
grino, cum eum Latinum esse
crederet, (e lege Aelia Sentia}
nupserit, potest ex senatuscon-
sulto filio nato causam erroris
probare, et ita omnes fiunt
ciues Romani et films in pote-
state patris esse incipit.
S 70. Idem constitutum est,
• T •
si Latinus per errorem pere-
grinam quasi Latinam aut
ciuem Romanam e lege Aelia
Sentia uxorem duxerit.
§ 71. Praeterea si ciuis
Romanus, qui se credidisset
Latinum esse, ob id Latinam
(uxorem duxerit}, permittitur
ei filio nato erroris causarn pro-
bare, tamquam (si) e lege
Aelia Sentia uxorem duxisset.
Item his qui cum ciues Romani
essent, peregrinos se esse credi-
dissent et peregrinas uxores
duxissent, permittitur ex se-
natusconsulto filio nato causam
erroris probare ; quo facto fiet |
uxor ciuis Rom ana et films
non solum ad cmi£a]tem Ro-
manam peruenit, sed etiam in
potestatem patris redigitur.
§ 72. Quaecumque de filio
esse diximus, eadem et de filia
dicta intellegemus.
§ 73. Et quantum ad erroris
causam probandam attinet,
nihil interest cuius aetatis filius
sit | 1 1 — , si minor
anniculo sit filius filiaue, causa
probari | non potest. nee me
praeterit in aliquo rescripto
diui Hadriani ita esse consti-
husband continues of the same
status, and therefore the son,
though he becomes a Eoman citi-
zen, does not fall under paternal
power.
§ 69. Also a Latin freed woman
married according to the provision
of the lex Aelia Sentia to an alien
whom she believed to be a Latin,
is permitted by the senatuscon-
sult, on the birth of a son, to prove
a cause of justifiable error, and
thereupon they all become Roman
citizens, and the son becomes
subject to paternal power.
§ 70. Exactly the same relief is
given if a Latin freedman mis-
takenly marry an alien woman
believing her to be a Latin f reed-
woman, or a Roman citizen,
when he intended to comply with
the lex Aelia Sentia.
§ 71. Further, a Roman citizen
who marries a Latin freed woman,
believing himself to be a Latin, is
permitted on the birth of a son to
prove the cause of his mistake as
if he had married according to the
provisions of the lex Aelia Sentia.
So, too, a Roman citizen, who
marries an alien, believing him-
self to be an alien, is permitted
by the senatusconsult on the birth
of a son to prove the cause of the
mistake, and then the alien wife
becomes a Roman citizen, and the
son becomes a Roman citizen and
subject to the power of the father.
§ 72. Whatever has been said
of a son applies to a daughter.
§ 73. And as to the proof of the
cause of error, the age of the son
or daughter is immaterial, except
that, if the marriage was con-
tracted with an intention to satisfy
the requirements of the lex Aelia
Sentia, the child must be a year
old before the cause can be proved.
E 2
52
DE PERSONIS
[i. §§65-75.
tutum, tamquam quocZ ad er-
roris quoque \ causam pro-
bandam 1 1 im-
perator dedit.
§ 74 (Bed) si peregrinus
ciuem Romanam uxorem du-
xerit, an ex senatusconsulto
causam prepare possit, quae-
situm est, probare \ causam
non potest, quamuis ipse
— | hoc ei specialiter concessum
est. sed cum peregrinus ciuem
Romanam uxorem duxisset et
filio nato alias ciuitatem Ro-
manam consecutus esset, deinde
cum quaereretur, an causam
probare posset, rescripsit im-
peratorAntoninusproindeposso
eum causam probare, atque si
peregrinus mansisset. ex quo
colligimus etiam peregrinum
causam probare posse.
§ 75. Ex his quae diximus
apparet, siue ciuis Romanus
peregrinam siue peregrinus
ciuem Romanam uxorem du-
xerit, eum qui nascitur pere-
grinum esse. sed siquidem per
errorem tale matrimonium con-
tractum fuerit, emendari uitium
eius ex senatusconsulto licet
(secundum} ea quae superius
diximus. si uero null us error
interuenerit, (sedy scientes
suam condicionem ita coierint,
nullo casu ememfatur uitium
euts matrimonii.
I am aware that a rescript of the
late Emperor Hadrian speaks as
if it was a condition of proof of
the cause of error that the son
must be a year old, but this is to
be explained by the particular
circumstances of the case in which
this rescript was granted.
§ 74. It is a question whether an
alien, who has married a Roman
wife, can prove cause of error
under the S. C. But when an
alien, believed to be a Roman
citizen, married a Roman wife,
and subsequently to the birth of a
son acquired Roman citizenship,
on the question arising whether
he could prove the cause of error,
a rescript of Antoninus Pius de-
cided that he was just as com-
petent to prove as if he had con-
tinued an alien : from which may
be gathered that an alien is com-
petent to prove the cause of error.
§ 75, Hence it appears that a
person born in marriage is an
alien if his father was a Roman
citizen and his mother an alien,
or if his father was an alien and
his mother a Roman citizen,
though if the marriage was con-
tracted under a mistake, a remedy
is supplied by the S. C. as above
explained. No relief is given in
any case, where the parties did
not contract marriage under an
error, but were aware of their
condition.
Mistake or error sometimes conferred a right which a party
could not have acquired if he had not acted under a mistake. Thus,
the lender of money to a filiusfamilias without the father's consent
had no legal claim to recover, unless he lent believing the borrower
to be independent (sui juris), and possession could not mature by
usucapion into ownership, unless it had a bona fide inception, i.e.
I. §§ 76-87.] DE STATV LIBERORVM
53
unless it commenced in an honest misunderstanding. The relief of
error had similarly important results in questions of status. Erroris
causam probare seems to mean 'to make good a title by error/
i. e. to establish, as title (causa) to relief, a probabilis error or justa
ignorantia ; i. e. a mistake not due to negligence ; for negligence
would exclude from relief.
The subjection of a child to patria potestas by erroris causae
probatio operated to invalidate a previously executed will, like the
subsequent birth (agnatio) of a child in civil wedlock (suus postu-
mus), 2 § 142.
DE STATV LIBERORVM.
§ 76. Loquimur autem de
his scilicet, {inter} quos conu-
bium non sit ; nam alioquin
si ciuis Romanus peregrinam
cum qua ei conubium est uxo-
rem duxerit, sicut supra quoque
diximus, iustum matrimonium
contrahiiur ; et tune ex his qui
nascitur ciuis Romanus est et
in potestate patris erit.
§ 77. Item si ciuis Romana
peregrine, cum quo ei conu-
bium est, nupserii, peregrinum
sane procreatf et is iustus patris
filius est, tamquam si ex pere-
grina eum procreasset. hoc
tamen tempore (ex) senatus-
consulto, quod auctore diuo
Hadriano factum est, etiamsi
non fuerit conubium inter
ciuemRomanam et peregrinum,
qui nascitur iustus patris filius
est.
§ 78. Quod autem diximus
inter ciuem Romanam pere-
grinurnque qui \ nascitur
peregrinum esse, lege Minicia
c&uetur,( ) jest, ut a
parentis condicionem sequatur.\
eadem lege enim ex diuerso
cauetur, ut si peregrinam, cum
qua ei conubium non sit, uxo-
rem duxerit ciuis Romanus,
§ 76. It is to be remembered
that we are speaking of a marriage
between persons who have not
the capacity of entering into a
civil marriage with one another.
When, however, a Roman citizen
takes to wife an alien privileged as
I described (§ 56), he contracts
a civil marriage, and his son is
born a Roman citizen and subject
to his power.
§ 77. So if a female Roman
citizen many an alien with whom
she has capacity of civil marriage,
her son is an alien and a lawful
son of his father, just as if his
mother had been an alien. At
the present day, by a senatus-
consult passed on the proposition
of the late Emperor Hadrian, even
without civil marriage the off-
spring of a Roman woman and
alien is a lawful son of his father.
§ 78. The rule we have stated
that when a female Roman citizen
marries an alien, the offspring is
an alien, if there is no capacity of
civil marriage between them, is
enacted by the lex Minicia, which
also provides that when a Roman
citizen marries an alien woman,
and there is no capacity of civil
marriage between them, their off-
spring shall be an alien. This
54
DE PERSONIS
[r.§§ 76-87.
peregrinus ex eo coitu nascatur.
sed hoc maxime casu necessaria
lex Minicia ; nam remota ea
lege diuersam condicionem
sequi debebat, quia ex eis,
inter quos non est conubium,
qui nascitur iure gentium
matris condicioni accedit. qua
parte autem iubet lex ex cine
Romano et peregrina pere-
grinum nasci, superuacua uide-
tur; nam et remota ea lege
hoc utique iure gentium | fu-
turum erat.
§ 79. Adeo autem hoc ita
est, ut 1 1 •
iion | solum exterae nationes et
gentes, sed etiam qui Latini
nominantur ; sed ad alios
Latinos pertinet qui proprios
populos propriasque ciuitates
habebant et erant peregrinorum
numero.
§ 80. Eadem ratioue ex con-
trario ex Latino et ciue Romana,
siue ex lege Aelia Sentia siue
aliter contractum fnerit matri-
monium, ciuis Romanus nasci-
tur. fuerunt tamen qui puta-
uerunt ex lege Aelia Sentia
contracto matrimonio Latinum
nasci, quia uidetur eo casu per
legem Aeliam Sentiam et
luniam conubium inter eos
dari, et semper conubium efficit,
ut qui nascitur patris condi-
cioni accedat ; aliter uero con-
tracto matrimonio eum qui
nascitur iure gentium matris
condicionem sequi et ob id
esse ciuem Romanum. sed hoc
iure utimur ex senatusconsulto,
quo auctore diuo Hadriano
significatur, ut quoquo modo
ex Latino et ciue Romana
special enactment was required in
the first case, as otherwise the
child would follow the condition
of the mother ; for when there
is no capacity of civil marriage
between parents, their offspring
belongs to the condition of his
mother by jus gentium. But the
part of this law which ordains
that the offspring of a Roman
citizen and an alien Woman is an
alien seems to be superfluous,
since* without any enactment this
would be so under the rule of
jus gentium.
§ 79. Somuchsothatitisunder
this rule of jus gentium that the
offspring of a Latin freedwoman
byaRoman citizen with whom she
has no capacity of civil marriage
is a Latin, since the statute did
not refer to those who are now
designated Latins ; for the Latins
mentioned in the statute are
Latins in another sense, Latins
by race and members of a foreign
state, that is to say, aliens.
§ 80. By the same principle,
conversely, the son of a Latin
and a Roman woman is by birth
a Roman citizen, whether their
marriage was contracted under
the lex Aelia Sentia or otherwise.
Some, however, thought that if
the marriage was contracted in
accordance with the lex Aelia
Sentia, the offspring is a Latin
by birth, because on this hypo-
thesis the lex Aelia Sentia and
Junia confer a capacity of civil
marriage, and a civil marriage
always transmits to the offspring
the status of the father: if the
marriage was otherwise contract-
ed, they held the offspringacquires
by jus gentium the status of his
mother. However, the law on
this point is now determined by
the senatusconsult passed on the
proposition of the late Emperor
r. §§ 76-87.] DE STATV LIBERORVM
55
natus ciuis Romanus nasca-
tur.
§ 81. His omuenienter etmm
illud senatuseonsultum diuo
Hadriano auctore significauit,
ut (qui) ex Latino et pere-
grina, item contra (qui) ex
peregrino et Latina nascititr,
is matris condicionem sequatur.
§ 82. Illud quoque his con-
sequens est, quod ex ancilla
et libero iure gentium seruus
nascitur, et contra ex libera et
seruo liber nascitur.
§ 83. Animaduertere tamen
debemus, ne iuris gentium regu-
lam ue£ lex aliqua uel quod
legis uicem optinet, aliquo casu
commutauerit.
§ 84. Ecce enim ex senatus-
consulto Claudiano poterat
ciuis Romana quae alieno seruo
uolente domino eius coiit, ipsa
ex pactione libera permanere,
sed seruum procreare ; nam
quod inter earn et dominum
istius serui conuenerit, eo se-
natusconsulto ratum esse iu-
betur. sed postea diuus Ha-
drianus iniquitate rei et inele-
gantia iuris motus restituit
iuris gentium regulam. ut cum
ipsa mulier libera permaneat,
liberum pariat.
§ 85. (Item e lege }
ex aTicilla et libero poterant
liberi nasci ; nam ' ea lege
cauetur, ut si quis cum aliena
ancilla quam credebat liberam
esse coierit, siquidem mascuft
nascantur, liberi sint, si uero
feminae, ad euro, pertineafit
cuius mater aTicilla fuerit. sed
et in hac specie diuus Vespa-
sianus inelegantia iurie motus
Hadrian, which enacts that the
son of a Latin and a Koman
woman is under every hypothesis
a Roman citizen.
§81. Consistently here with Ha-
drian's senatusconsult provides
that the offspring of the marriage
of a Latin freedman with an alien
woman or of nn alien with a
Latin freedwoman follows the
mother's condition.
§ 82. Consistently herewith the
offspring of a female slave and a
freeman is by jus gentium a slave,
the offspring of a freewoman and
a slave is free.
§ 83. We must observe, how-
ever, whether the jus gentium
in any given instance is overruled
by a statute or ordinance having
the authority of a statute.
§ 84. For instance, the Sc. Clau-
dianum permitted to a female citi-
zen of Rome having intercourse
with a slave with his owner's
consent, to continue herself in
virtue of the agreement free,
while she gave birth to a slave,
her agreement to that effect with
the owner being made valid by the
senatusconsult. Subsequently,
however, the late Emperor Ha-
drian was induced by the injustice
and anomaly of the ordinance to
re-establish the rule of jus gen-
tium, that as the mother continues
free the offspring follows her
status.
§ 85. By a law (the name of
tvJiich is unknown] the offspring
of a female slave by a freeman
might be free, for that law pro-
vided that the offspring of a free-
man by another person's female
slave whom he believed to be free
shall be free if they are male, but
shall belong to their mother's
proprietor if they are female:
but here too the late Emperor
Vespasian was moved by the
56
DE PERSONIS
[i. §§76-87.
restituit iuris gentium regulam,
ut omni modo, etiamsi masculi
nascantur, serui sint eius cuius
et mater fuerit.
§ 86. Sed ilia pars eiusdem
legis salua est, ut ex libera et
seruo alieno, quern sciebat
seruum esse, serui nascantur.
itaque apud quos talis lex non
est, qui nascitur iure gentium
matris condicionem sequitur et
ob id liber est.
§ 87. Quibus autem casibus
matris et non patris condi-
cionem sequitur qui nascitur,
isdem casibus in potestate eum
patris, etiamsi is ciuis Romanus
sit, non esse plus quam mani-
festum est. et ideo superius
rettulimus quibusdam casibus
per errorem non iusto contracto
matrimonio senatuminteruenire
et emendare uitium matrimonii,
eoque modo plerumque efficere,
ut in potestatem patris filius
redigatur.
§§ 76, &c. The rules relating to the status of the offspring of parents
of unequal status are at first sight chaotic and bewildering, but they
are reducible to a few canons. The most general canon is the rule
of jus gentium, that children follow the condition of the mother.
This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the
father. Cf. §§ 88, 89, 94.
2. Children born in gentile (lawful) wedlock of a Eoman mother
and alien father follow the condition of the father: this was a
special enactment of the lex Minicia.
These rules are stated in the following passages : Lex naturae
haec est ut qui nascitur sine legitimo matrimonio matrem sequatur
nisi lex specialis aliud inducat, Dig. 1, 5, 24. 'By the law of
nature children not born in civil wedlock follow the status of the
mother, in the absence of a special statute to the contrary.' Con-
nubio interveniente liberi semper patrem sequuntur: non inter-
veniente connubio, matris condition! accedunt, excepto eo qui ex
anomalous character of the rule
to re-establish the canon of jus
gentium, and declared that the
offspring in every case, whether
male or female, should be slaves
and the property of their mother's
owner.
§ 8 6. But another clause of that
law continues in force, providing
that the offspring of a freewoman
by another person's slave whom
she knows to be a slave are born
slaves, though where this law is
not established the offspring by
jus gentium follow the mother's
condition and are free.
§ 87. When the child follows
the mother's condition instead of
the father's, it is obvious that he
is not subject to the power of
the father, even though the father-
is a Roman citizen : but in some
cases, as I mentioned above (§67),
when a mistake was the occasion
of a non-civil marriage being con-
tracted, the senate interferes and
purges the defect of the marriage,
and this generally has the effect of
subjecting the son to the power
of the father.
I. §§ 88-92.] DE STATV LIBERORVM 57
peregrine et cive Romana peregrinus nascitur, quoniam lex Minicia
(in MS. Mensia) ex alterutro peregrine natum deterioris parentis
conditionem sequi jubet, Ulpian, 5, 8. 'In civil wedlock the
children have the status of the father, in the absence of civil
wedlock of the mother ; except that the children of an alien father
and Roman mother are aliens, as the lex Minicia makes the children
aliens when either parent is an alien.'
The Sc. Claudianum introduced some special enactments respect-
ing the intercourse of freewomen with slaves, which, however, were
subsequently abolished.
a. If a freewoman had intercourse with a slave with the consent
of his proprietor she retained her freedom, though degraded to the
class of a freedwoman, but her issue was the slave of the proprietor.
The slavery of the issue was abolished by Hadrian. § 84.
b. If a freewoman persisted in intercourse with the slave of another
person against the will and in spite of the prohibition of the pro-
prietor, after three denunciations on his part she was awarded to him
by the magistrate as a slave, and her issue, whether born before or
after the adjudication, became slaves of the same person, who also
acquired her estate by a species of universal succession. Cf. §§91,
160. This terroristic law, which, from the minuteness with which
the details are developed (Paulus, 2, 21), appears to have been often
applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1 .
c. If a freeman had intercourse with a slave whom he supposed
to be free by a law the title of which is lost, but which possibly may
be the Sc. Claudianum, her male children were born into freedom.
This relief of error was abolished by Vespasian as anomalous
(inelegans), § 85.
§ 80. There was some ground for the view that a marriage
under the lex Aelia Sentia, because it was statutory (regulated
by statute), was therefore a civil marriage ; and we may regard the
senatusconsult of Hadrian, which denied its civil character, as not
purely declaratory.
§ 88. Sed si ancilla ex ciue § 88 if a female slave conceive
Romano concepmt, delude by a Eoman citizen and become
manumissa cmis Romana facta herself by manumission a Roman
sit et tune pariat, licet ciuis citizen before giving birth toa son,
Rowawus sit qui nascitur, sicut her son, though a Roman citizen
pater eius, non tamen in pote- like his father, is not in his father's
state patris est, quia neque ex power, because he was not be-
iusto coitu conceptus est ne- gotten in civil wedlock, and there
que ex ullo senatusconsulto is no senatusconsult which cures
tails coitus quasi iustus con- the defect of the intercourse in
stituitur. which he was begotten.
58
DE PERSONIS
[i. §§ 88-92.
§ 89. Quod autem placuit, si
ancilla ex ciue Romano con-
ceperit, deinde manumissa
pepererit. qui nascitur liberum
nasci, -natural! ratione fit ; nam
hi qui illegitime concipiuntur,
statum suniunt ex eo tempore
quo nascuntur ; itaque si ex
libera nascuntur, liberi fiunt,
nee interest ex quo mater eos
conceperit, cum ancilla fuerit ;
at hi qui legitime concipiuntur
ex conceptionis tempore statum
sumuni.
§ 90. Itaque si cm mulieri
ciui Romanae praegnati aqua
et igni interdictum fuerit, eoque
modo peregrina i'acta tune
pariat, conplures distinguurit et
puta-nt, siquidem ex iustis nup-
tiis conceperit, ciuem Romanum
ex ea nasci, si uero uulgo con-
ceperit, peregrinum ex ea nasci.
§ 91. Item si qua mulierciuis
Romana praegnas ex senatus-
consulto Claudiano ancilla facta
sit ob id, quod alieno seruo
inuito et denuntiante domino
eius (coierif), conplures distin-
(/itunt et existimant, siquidem
ex iustis nuptiis concepts sit,
ciuem Romanum ex ea nasci,
si uero uulgo conceptus sit,
seruum nasci eius cuius mater
facta esset ancilla.
§ 92. Peregrina quoque si
uulgo conceperit, deinde ciuis
Romana {fiat} et tune pariat,
ciuem Romanum parit ; si uero
ex peregrine secundum leges
moresque peregrinorum con-
ceperit, ita uidetur ex sena-
tusconsulto quod auctore
diuo Hadriano factum est
ciuem Romanum parere, si et
patri eius ciuitas Romana do-
§ 89. The decision that when a
female slave conceives by aEoman
citizen and is manumitted before
childbirth, her offspring is born
free, is a rule of natural law ; for
in illegitimate or non-civil con-
ception the status of the offspring
depends on the moment of birth,
and the mother's freedom at the
moment of birth makes the off-
spring free, and the status of the
father is immaterial; but in
statutory or civil conception the
status of the child is determined
by the time of conception.
§ 90. Accordingly, if a female
citizen of Eome being pregnant is
interdicted from fire and water,
and becoming thus an alien gives
birth to a child, many jurists
distinguish and hold that her
offspring is a Roman citizen if
begotten in civil wedlock, but if
in promiscuous intercourse, an
alien.
§ 91. So if a female citizen of
Eome being pregnant is reduced to
slavery under the Sc. Claudianum
for having intercourse with a slave
in spite of the dissent and de-
nunciation of his owner, many
jurists make a distinction and
hold that her offspring, if con-
ceived in civil wedlock is a citizen
of Rome, if conceived in illicit
intercourse is a slave of the person
who becomes proprietor of the
mother.
§ 92. Also if an alien woman
conceive in illicit intercourse and
afterwards becomes a Roman citi-
zen and gives birth to a child, the
child is a Roman citizen ; but if
she conceived by an alien, to
whom she was married in accord-
ance with alien laws and customs,
it seems that upon Hadrian's
senatusconsult her offspring is
only born a Roman citizen, if the
father also has acquired the Roman
citizenship.
T. §§ 88-92.] DE STATV LIBERORVM 59
Supposing the status of a parent changes during the period of
gestation (if, for instance, the mother is a slave at the time of
conception and free at the time of birth), what effect has this on
the status of the issue ? The following rule was adopted : in cases
where the child follows the status of the father, that is, when it is
begotten in civil marriage, the status of the father at the time of
conception determines the status of the child ; where the child
follows the status of the mothei', that is, when it is begotten in
gentile marriage or in promiscuous intercourse, the status of the
child is determined by the status of the mother at the moment of
birth. Ulpian, 5, 1 0. ' Children born in civil wedlock have their
status fixed at the time of conception ; children born out of civil
wedlock have their status fixed at the time of delivery.' That is to
say, the legal position of the issue is made to follow the analogy of its
physical condition. The physical influence of the father terminates
with conception : his subsequent health, life, or death, does not
affect the physical state of the child ; but the child is affected by
every change in the physical condition of the mother, her health,
life, or death, up to the moment of birth. In imitation of this
analogy, the status of the child, when it depended on the status of
the father, was not affected by any change in that status subsequent
to the period of conception ; but when it depended on the status of
the mother it varied with every change in that status up to the
moment of birth. By the time of Gaius, though the change is not
mentioned in the text, this rule was modified in favour of liberty,
and it was established that if the mother was free either at
the date of conception or at the date of birth or at any interme-
diate period, the issue was born free. Si libera conceperit et ancilla
facta peperit, liberum parit, id enim favor libertatis exposcit. Si
ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla
peperit, liberum parit, media enim tempora libertati prodesse, non
nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.
§ 88. The issue of a mother who was a slave at the date of con-
ception but is a citizen at the date of birth, though it is born a
Roman citizen, is not subject to patria potestas, because it does not
satisfy the definition in § 55, liberi quos justis nuptiis procreavimus,
'a child begotten in civil wedlock.'
§ 90. Aquae et ignis interdictio was originally a permission to avoid
punishment under the penal code by voluntary exile. Subsequently
it was employed as a punishment, and under the emperors assumed
the form of deportatio in insulam. It was attended with confiscation
of goods, and involved loss of ci vitas but not of libertas, §§ 128, 161.
§ 92. The offspring of a wedded mother who was an alien at the
date of conception and is a citizen at the date of birth, according
60
DE PERSONIS
[i. §§93-96.
to the general rule of jus gentium, should be born a Roman citizen ;
but this would contravene the above-mentioned lex Minicia, which
enacted that the issue of a marriage is an alien whenever either
parent is an alien, § 78.
§ 93. Si peregrinus sibi
liberisque suis ciuitatem Ro-
man am petierit, non aliter filii
in potestate eius Hent, quam si
imperator eos in potestatem
redegerit ; quod ita demum is
facit, si causa cognita aesti-
mauerit hoc filiis expedire.
diligentius autem exactiusque
causam cognoscit de inpuberi-
bus absentibusque ; et haec ita
edicto diui Hadriani signifi-
ca?itur.
§ 94. Item si quis cum
uxore praegnate ciuitate Ro-
mana donatus sit, quamuis is
qui nascitu?', ut supra diximus,
ciuis Romanus sit, tamen in
potestate patris non fit ; idque
subscriptione dim Hadriani
significatur ; qua de causa qui
intellegit uxorem suam esse
praegnatem, dum ciuitatem sibi
et uxori ab imperatore petit,
simul ab eodem petere debet,
ut eum qui natus erit in pote-
state sua habeat.
§ 95. Alia causa est eorum
qui Latii iure cum liberis suis
ad ciuitatem Romanam per-
ueniunt ; nam horum in pote-
state fiunt liberi. quod ius qui-
busdam peregrinis ciuitatibus
datum est uel a populo Romano
uel a senatu uel a Caejsare.
§96.
aut maius est
Lati|um aut minus: maius est
Latium, cum et hi qui decu-
riones leguntur et ei qui hono-
rem aliquem aut magistratum
gerunt ciuitatem Romanam
§ 93. If an alien has obtained
by petition for himself and his
children a grant of Roman citi-
zenship, the children do not fall
under the power of the father
except by express ordinance of
the emperor, which he only makes
if, on hearing the facts of the
case, he deems it expedient for
the interest of the children, and
he makes a still more careful and
minute inquiry if they are below
the age of puberty and absent, as
an edict of the Emperor Hadrian
intimates.
§ 94. Also if an alien and his
pregnant wife receive a grant of
Roman citizenship, the child,
though a Roman citizen, as above
mentioned, is not born in the
power of his father according to
a rescript of the late Emperor
Hadrian ; wherefore, if he knows
his wife to be pregnant, an alien
who petitions the emperor for
Roman citizenship for himself
and his wife ought at the same
time to petition that his son may
be subjected to his power.
§ 95. The rule is different for
those who with their children are
made Roman citizens by right
of Latinity, for their children fall
under their power ; this right
has been conceded to certain alien
states either by the Roman people,
or by the senate or by the
emperor.
§ 96. The right of Latinity is
either greater or lesser. Greater
Latinity is the right whereby those
who are chosen decuriones or hold
some high office or magistracy ac-
quire Roman citizenship : lesser
T. §§ 93-96.] DE STATV LIBERORVM 61
consecuntur ; minus Latium est, Latinity is when only those who
cum hi tantum qui magistra- are magistrates or hold high office
turn uel honorem gerunt ad acquire Eoman citizenship, a
ciuitatemRomanamperueniunt: distinction intimated by several
idqueconpluribusepistulisprin- imperial rescripts.
cipum significatur.
The grant of civitas was either made to communities or to
individuals. It was a lucrative source of revenue to the emperors.
The fees to be paid were not small, Acts of the Apostles, 22, 28,
and the new-made civis was regarded as a manumitted slave of the
emperor, and was expected to remember the emperor in his will.
The philosophic emperor, Marcus Aurelius, under whom Gaius
flourished, granted Eoman citizenship to all who were ready to
pay the fees, data cunctis promiscue civitas Romana, Aurelius
Victor, 16. Antoninus Caracalla, A.D. 212-217, after raising from
one-twentieth to one-tenth the tax on manumissions and the testa-
mentary succession and legacy duty, which was only levied on
Roman citizens, exhausted for a time this source of revenue by
conferring at a stroke Roman citizenship on every free subject
of the empire : In orbe Romano qui sunt ex constitutione impera-
toris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was
not a general manumission of slaves nor an abolition of the status of
Latin or alien, but a grant of citizenship to all existing Latins
and aliens, imposing in effect a capitation tax on the individuals,
and leaving those orders to be again replenished by subsequent
manumissions of Latini and dediticii. The value of the privileges
of civis Romanus was gradually declining. The political portions
of civitas had been extinguished by the establishment of the empire,
and Rome was destined at last to undergo the fate she had inflicted
on so many other cities. She was sacked by Alaric, king of the
Goths, A. D. 410. She was entered by Genseric, king of the Vandals,
and, after a sack of fourteen days, left a heap of ruins, A.D. 455.
The splendour of the title of civis Romanus was sadly dimmed before
Justinian made it acquirable by every form of manumission.
§ 94. Subscriptio was an imperial rescript written under the peti-
tion to which it was an answer : a rescript written on a separate
document was called epistola. The latter was addressed to public
functionaries, the former to private individuals, and by its connexion
with the petition enabled a tribunal to which it was submitted
to investigate the truth of the allegations on which it was founded.
Cf. § 5, comm. ; and see Roby, Private Law, Intr. p. 6, n. 2.
The grant of patria potestas by the Emperor to the new-made
citizen, § 93, may be assimilated to the legislative grant of patria
potestas in adrogatio. Its different effects may be compared with
62 DE PERSONIS [i. §§ 97-107.
the incidents of Naturalization and Denization in English law.
Naturalization formerly only effected by act of parliament is retro-
spective, and puts an alien in exactly the same state as if he
had been born in the king's ligeance, and his son born before
the naturalization may inherit : whereas the issue of a Denizen
(an alien born who has obtained ex donatione regis letters patent
to make him an English subject) cannot inherit to him, but his
issue born after may. Blackstone.
§§ 95, 96. Before the recension of the text by Studemund Gaius
was supposed to have denned greater Latinity in this section as the
right whereby the magistrates of certain towns acquire the Roman
franchise along with their wives and children, and lesser Latinity
as the right whereby the magistrates themselves acquire the Eoman
franchise, but not their wives and children. The distinction made
by Gaius between these two kinds of Latinity is not found in any
other writer (cf. note to Muirhead's Gaius, h. 1.).
The name of a senate in a municipality was ordo decurionum
or simply ordo or curia, its members being decuriones or curiales.
The office of decurio, which was at one time a coveted distinction,
became very burdensome ; and in order to make it more acceptable,
privileges were from time to time attached to it, as e.g. Latium
majus, and in later times legitimatio per oblationem curiae (Inst.
1, 10, 13). (Dig. 50, 2 de decurionibus.)
It is to be noticed that the jus Latii could, according to Gaius, § 95,
be constitutionally granted in three ways, either by the people itself
(in Comitia), or by the senate (representing the people), or by the
Emperor (in whom the power of the people was to a great extent vested).
DE ADOPTIONIBVS.
§ 97. I Non solum tamen §97. Not only natural children
naturales liber i secundum ea are subject, as mentioned, to pa-
quae \ diximus in potestate ternal power, but also adoptive
nostra sunt, uerum et hi quos children,
adoptamus. Inst. 1, 11 pr.
§ 98. Adoptio autem duobus § 98. Adoption is of two forms,
modis fit, aut populi auctori- adoption by authority of the
tate, aut imperio magistratus, people and adoption by the
ueluti praetoris. executive command of a magis-
Inst 1111 trate, as of the praetor.
§99. Populi auctoritateadop- § 99p Authority of the people
tamus eos qui sm mris sunt; is required for the adoption of
quae species adoptioms dicitur an independent person, and this
adrogatio, quia et is qui adoptat form is called adrogation, be-
rogatur, id est interrogatur, an cause the adopter is interrogated
uelit eum quern adoptaturus sit whether he wishes to have the
I. §§ 97-107.]
DE ADOPTIONIBVS
63
iustum sibi filium esse ; et is
qui adoptatur rogatur an id
fieri patiatur; et populus ro-
gatur an id fieri iubeat. im-
perio magistratus adoptamus
eos qui in potestate parentum
sunt, siue primum gradum li-
berorum optineant, qualis est
filius et filia, siue inferiorem,
qualis est nepos neptis, prone-
pos proneptis. Inst. 1. c.
§ 100. Et quidera ilia adop-
tio quae per populum fit nus-
quain nisi Romae fit ; at haec
etiam in prouinciis apud prae-
sides earum fieri solet.
1. Item per populum
IP • i
/lemmae non adoptantur, nani
jid magis placuit ; apud prae-
korem uero uel in prouinciis
apud proconsulem legatumue
etiam feminae solent adoptari.
§ 102. Item inpuberem apud
populum adoptari aliquando
prohibitum est, aliquando per-
missum est ; nunc ex epistula
optimi imperatoris Antonini
quam scripsit pontificibus, si
iusta causa adoptionis esse ui-
debitur, cum quibusdam condi-
cionibus permissum est. apud
praetorem uero et in prouinciis
apud proconsulem legatumue
cuiuscumque aetatis( personas")
adoptare possumus.
Inst. 1,11,3.
§ 103. Ill-ud utriusque adop-
tionis commune est, quod et
hi qui generare non possunt,
person adopted for his lawful
son, the person adopted is inter-
rogated whether he thereto con-
sents, and the people (in comitia)
is interrogated whether such is
its command. The executive
command of a magistrate is the
proceeding for the adoption of a
person subject to the power of
an ascendent, whether a de-
scendent in the first degree, as
a son or daughter, or in a re-
moter degree, as a grandson or
granddaughter, great-grandson or
great-granddaughter.
§ 100. Adoption by vote of
the people (in comitia) can only
be solemnized at Borne, the
other process is usually effected
in the provinces in the court of
the president.
§ 101. Adoption by vote of the
people is inapplicable to females,
as has finally been ruled ; but
females may be adopted by the
other mode of adoption, at Koine
in the court of the praetor, in pro-
vinces of the people it is usually
effected in the court of the pro-
consul, in provinces of the em-
peror in the court of the legate.
§ 102. The legislative adoption
of a child below the age of
puberty by vote of the people
was at one time prohibited, at
another permitted ; at the present
day, by the epistle of the Em-
peror Antoninus addressed to the
pontifices, on evidence of a just
cause of adoption, it is permitted,
subject to certain conditions. In
the court of the praetor at Rome,
in the court of the proconsul in
a province of the people, and
in the court of the legate in a
province of the emperor, a person
of any age may be adopted.
§ 103. Both forms of adoption
agree in this point, that per-
sons incapable of procreation by
DE PERSONIS
[i. §§ 97-107.
quales sunt spadones, adoptare
possunt. Inst. 1, 11,9.
§ 104. Feminae uero nullo
modo adoptare possunt, quia ne
quidem naturales liberos in
potestate habent.
Inst. 1,11,10.
§ 105. Item si quis per po-
pulum siue apud praetorem
uel apud praesidem prouinciae
adoptauerit, potest eundem alii
in adoptionem dare.
§ 106. Sed et ilia quaestio,
an minor natu maiorem natu
adoptare possit, utriusque ad-
optionis communes est.
§ 107. Illud proprium est
eius adoptionis quae per popu-
lum fit, quod is qui liberos in
potestate habet, si se adro-
gandum dederit, non solum ipse
potestati adrogatoris subicitur,
sed etiam liberi eius in eiusdem
fiunt potestate tamquam ne-
potes. Inst. 1,11,11.
natural impotence are permitted
to adopt.
§ 104. Women cannot adopt
by either form of adoption, for
even their natural children are
not subject to their power.
§ 105. He who has adopted a
person either by the vote of the
people or by the authority of
the praetor or of the president
of a province, can transfer his
adoptive son to another adoptive
father.
§ 106. Whether a younger-
person can adopt an older is a
disputed point in both forms of
adoption.
§ 107. It is peculiar to adoption
by the vote of the people that
children in the power of the
person adrogated, as well as their
father, fall under the power of the
adrogator, assuming the position
of grandchildren.
Adrogation, or the adoption of an independent person (pater-
familias), reducing him to a dependent status (filiusfamilias), was a
legislative act of the Comitia Curiata ; but though, as representing
the people, this assembly was legally omnipotent, it was unconstitu-
tional to deprive a person either of the citizenship or of domestic
independence without his own consent. We learn from Cicero
the formula by which this assent was ascertained. De Domo, 29.
' As it is an immemorial rule of law that no citizen of Kome shall be
deprived of the independent position of paterfamilias or of citizenship
against his will, as you have had occasion of learning by your own ex-
perience, for I suppose that, illegal as your adrogation was in all points,
you at least were asked whether you consented to become subject to
the adrogator's power of life and death as if you were his son ; — if
you had opposed or been silent, and the thirty Curiae had neverthe-
less passed the law, tell me, would their enactment have had any
binding force ? ' The form in which the law was proposed to the
legislative assembly is given by Gellius, 5, 19. 'Adrogation is
the subjection of an independent person with his own consent to the
power of a superior, and is not transacted in the dark or without
I. §§ 97-107.] DE ADOPTIONIBVS 65
investigation. The Comitia Curiata, at which the College of Pon-
tiffs is present, are convened, and examine whether the age of the
adrogator does not rather qualify him for the natural procreation of
children, and whether the estate of the adrogatus is not the object
of fraudulent cupidity, and an oath, said to be framed by Q. Mucius,
the high pontiff, has to be taken by the adrogator. . . . Adroga-
tion, the name given to this transmit into a strange family, is
derived from the interrogation of the legislative body, which is in
the following form : ' May it please you to will and command that
L. Valerius shall be as completely by law and statute the son of
L. Titius as if he were born of L. Titius and his wife, and that
L. Titius shall have power of life and death over L. Valerius as
a father has over his son. Do you will and command as I have
said, Quirites?' Those who voted in affirmation of the measure
proposed said (at least in other similar assemblies) : Uti rogas ; those
who voted against it said : Antique. Women were originally in-
capable of being adrogated, § 101, because they were incapable of
appearing in the Comitia Curiata, Quoniam cum feminis nulla comi-
tiorum communio est, Gellius, ibid. ; but this incapacity vanished
as soon as the lex Curiata, as form of adrogation, was superseded by
imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21.
Women, being incapable of exercising parental power, could not,
properly speaking, adrogate, § 104 ; but they were permitted, under
Diocletian A.D. 291, by quasi adrogation to establish the same legal
relation as existed between a mother and her natural children, Cod.
8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be
sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena
pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth
must have attained the age of puberty before he could be adrogated,
§ 102, and Gellius, ibid. : Sed adrogari non potest nisi jam vesticeps
. . . quoniam tutoribus in pupillos tantam esse auctoritatem pote-
statemque fas non est, ut caput liberum fidei suae commissum alienae
ditioni subiciant. ' A youth cannot be adrogated before he has
assumed the toga virilis, because a guardian has no authority or
power to subject an independent person, with whose charge he is
entrusted, to the domination of a stranger.' The purple-edged praetexta
was generally laid aside by boys along with the bulla aurea which
they wore round their neck, on the first Liberalia, the 17th March,
Ovid, Fasti, 3, 771, after the completion of their fourteenth year.
Females did not lay aside the praetexta till their marriage. Anto-
ninus Pius permitted the adrogation of youths below the age of
puberty (impubes, investis) under certain conditions ; e. g. the adro-
gator entered into a stipulation, originally with a public slave, in
later times with a public notary (tabularius), in the event of the
WH1TTUCK
66 DE PERSONIS [i. §§ 108-115 6.
death of adrogatus before the age of puberty, to restore his estate
to his natural heirs, and, in the event of emancipation, to adrogatus
himself: and adrogatus became entitled to a fourth part of the
estate of adrogator (called quarta Antonini), of which he could not
be deprived by disinherison or by unmerited emancipation, § 102 ;
cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only
acquired a usufruct for life in the property, subject to which the
adrogatus was owner of it ; that is to say, the property of adrogatus
was transformed by adrogation into peculium adventicium. Cf.
3, 84, comm.
The form of simple adoption is explained below, § 134, under the
head of dissolution of patria potestas, for as patria potestas is vested
by adoption in the adoptive father, so it is divested from the natural
father.
The effect of adoption was much reduced by a constitution of
Justinian. If the adoption was by an ascendent, maternal or
paternal, it retained its old character : but if it was by a stranger
it neither created nor extinguished patria potestas ; it did not
transfer the adopted son from his old family into a new family, and
therefore it neither destroyed nor created any tie of agnation : its
only effect was to give to the adopted son, in the event of intestacy,
a claim against the estate of the intestate adoptive father ; Cod. 8,
47, 10 ; Inst. 1, 11, 2 and 3, 1, 14.
DE MANY.
§ 108. Nunc de his per- § 108. Let us next proceed to
sonis uideamus quae in manu consider what persons are subject
nostra sunt. quod \ et ipsum to the hand, which also relates
ius proprium ciuium Roma- to law quite peculiar to Roman
norum est. citizens.
§ 109. Sed in potestate qui- § 109. Power is a right over
dem et masculi et feminae males as well as females: hand
esse solent ; in manum autem relates exclusively to females,
feminae tantum cowueniunt.
§ 110. Olim itaque fribus § no. In former days there
modis in manum conueniebant, were three modes of becoming
usu farreo coemptione. subject to hand, use, confarrea-
tion, coemption.
§ 111 Usu in manum con- §ul Uge inyested the husband
uemebat quae anno continue with right of hand after a whole
nuptaperseuerabat; qmaernm year of unbroken cohabitation,
ueluti annua possessions usuca- guch annual possession operated
piebatur, in familiam uiri trans- a kind of usucapion, and brought
ibat filiaeque locum optinebat. the wife into the family of the
itaque lege XII tabularum cau- husband, where it gave her the
I. §§ 108-115 &.]
DE MANY
turn est, ut si qua nollet eo
modo in manum raariti con-
uenire, ea quotannis trinoctio
abesset atque eo modo (usum)
cuiusque anni interrumperet.
sed hoc totuua ius partim legi-
bus sublatum est, partim ipsa
desuetudine oblitteratum est.
§ 112. Farreo in manum con-
ueniunt per quoddam genus
sacrificii, quod loui Farreo fit ;
in quo farreus panis adhibetur,
unde etiam confarreatio dicitur;
conplura praeterea huius iuris
ordinandi gratia cum certis et
sollemnibus uerbispraesentibus
decem testibus aguntur et fiunt.
quocZ ius etiam nostris tempori-
bus in usu est ; nam flamines
maiores, id est Diales Martiales
Quirinales, item reges sacro-
rum nisi ex farreatis nati -non
leguntur ; ac ne ipsi quidem
sine confarreatione sacerdotium
habere possunt.
§ 113. Coemptione uero in
manum conueniunt per manci-
pationem, id est per quandam
imaginariam uenditionem ; nam
adhibitis non minus quam V
testibus ciuibus Romanis pube-
ribus, item libripende, emit is
mulierem, cuius in manum con-
uenit.
§ 114. fotest autem coem-
ptionem facere mulier non so-
lum cum marito suo, sed etiam
cum extraneo ; scilicet aut ma-
trimonii causa facta coemptio
dicitur aut fiduciae ; quae enim
cum marito suo facit coem-
ptionem, (u£) apud eum filiae
status of a daughter. Accordingly,
the law of the Twelve Tables
provided that a wife who wished
to avoid subjection to the hand
of the husband should annually
absent herself three nights from
his roof to bar the annual usuca-
pion : but the whole of this law
has been either partly abolished
by statute, or partly obliterated
by mere disuse.
§ 112. Confarreation, another
mode in which subjection to
hand originates, is a sacrifice
offered to Jupiter Farreus, in
which they use a cake of spelt,
whence the ceremony derives its
name, and various other acts and
things are done and made in the
solemnization of this disposition
with a traditional form of words,
in the presence of ten witnesses :
and this law is still in use, for
the functions of the greater
flamens, that is, the flamens of
Jove, of Mars, of Quirinus, and
the duties of the ritual king, can
only be performed by persons
born in marriage solemnized by
Confarreation. Nor can such per-
sons themselves hold a priestly
office if they are not married by
Confarreation.
§ 113. In coemption the right
of hand over a woman attaches
to a person to whom she is con-
veyed by a mancipation or imagi-
nary sale : for the man purchases
the woman who comes into his
power in the presence of at least
five witnesses, citizens of Kome
above the age of puberty, besides
a balance holder.
§ 114. By coemption a woman
may convey herself either to a
husband or to a stranger, that is to
say there are two forms of coemp-
tion, matrimonial and fiduciary.
A coemption with a husband in
order to acquire the status of
daughter in his house is a matri-
F a
68
DE PERSONIS
[i. §§108-1156.
loco sit, dicitur matrimonii
causa fecisse coemptionem ;
quae uero alterius rei causa
facit coemptionem aut cum
uiro suo aut cum extraneo,
ueluti tutelae euitandae causa,
dicitur fiduciae causa fecisse
coemptionem :
§ 115. quod est tale: si qua
uelit quos habet tutores depo-
nere et alium nancisci, illis auc-
toribus coemptionem facit ; de-
inde a coemptionatore reman-
cipata ei cui ipsa uelit, et ab
eo uindicta manumissa incipit
eum habere tuforem, (a) quo
manumissa est ; qui tutor fidu-
ciarius dicitur, sicut inferius
appare6it.
monial coemption: a coemption
for another purpose, whether with
a husband or with a stranger, for
instance, for avoiding a guardian-
ship, is a fiduciary coemption.
§ 1 1 5. This is accomplished by
the following process : the woman
who desires to set aside her
present guardians and substitute
another makes a coemption of
herself to some one with their
sanction : thereupon the party to
this coemption remancipates her
to the person intended to be sub-
stituted as guardian, and this
person manumits her by the form
of vindicta, and in virtue of this
manumission becomes her guar-
dian, being called a fiduciary
guardian, as will hereafter be
explained.
§ 1 1 5 a. In former times testa-
mentary capacity was acquired by
fiduciary coemption, for no woman
was competent to dispose of her
property by will, with the excep-
tion of certain persons, unless she
had made a coemption, and had
beenremancipated andthenmanu-
mitted: but this necessity of co-
emption was abolished by a sena-
tusconsult made on the motion of
Hadrian, of divine memory.
§ 1 15 &. Even if a woman makes
only a fiduciary coemption with
her husband, she acquires the
status of his daughter, for it is
held that from whatever cause
a woman is in the hand of her
husband, she acquires the position
of his daughter.
In early Eoman law a woman on marriage necessarily passed out
of her own agnatic family into that of her husband, taking the place
of a filiafamilias in it. If her husband was paterfamilias, she
came into his hand, if he was filiusfamilias into that of his father.
This power (manus) was the same in its nature as patria potestas.
§ 115 a. Olim etiam testa-
menti faciendi gratia fiduciarm
fiebat coemptio ; tune enim non
aliter feminae testamenti fa-
ciendi ius habebant, exceptis
quibusdam personis, quam si
coemptionem fecissent remanci-
pataeque et manumissae fuis-
sent : sed hanc necessitatem
coemptionis faciendae ex aucto-
ritate diui Ha|driani senatus
remisit.
§ 1 15 b. 1 femina >
fi|duciae causa cum mro suo
fecerit coemptionem, nihilo mi-
nus filiae loco incipit esse ; nam
si omnino qualibet ex causa
uxor in manu uiri sit,
earn filiae iura nancisci.
i. §§108-115 6.] DE MANY 69
By manus the husband, or the husband's father, had power of life and
death over the wife, Livy, 39, 18 ; Tac. Ann. 1 3, 32 ; and all the property
of the wife, even more absolutely than by the common law of English
jurisprudence, vested in the husband or his paterfamilias, 2 § 98.
The patriarchs of the Koman nation could probably not conceive
of the conjugal union as disjoined from manus. Yet at a very early
period of Roman history these were recognized as separable, and in
later times they were almost universally dissociated, and wedlock
was unaccompanied by manus. In a marriage celebrated without
confarreation and without coemption before the expiration of the
first year of cohabitation, there was civil wedlock without manus, and
the Twelve Tables provided a method (trinoctio abesse) by which this
state could be indefinitely prolonged, §111: and as soon as gentile
marriages were recognized by the law the Romans were still more
familiarized with the spectacle of lawful matrimony without manus.
As the ages advanced the wife acquired more and more indepen-
dence ; manus was almost obsolete in the time of Gaius, and it has
quite vanished from the legislation of Justinian. (For a detailed
account of the law of marriage see Sohm, pp. 470-498.)
Confarreation was a form of marriage which made the issue
eligible for certain high sacerdotal functions, and may therefore be
regarded as characteristic of the patrician caste. Originally it prob-
ably produced marital power in its full extent ; but when Augustus,
B. c. 10, after a vacancy of seventy-five years, renewed the priesthood
of Jove (flaminium diale) he limited by statute the legal effect of
confarreation in that particular instance, § 136; and Tiberius, A.D. 23,
extended the limitation to all future cases of confarreation, Tac.
Ann. 4, 1 6. Henceforth it only operated a change of family in respect
of sacred rites (sacra): the woman ceased to have the domestic gods
and domestic worship of her father, and took in exchange the
domestic gods and domestic worship of her husband. But in
secular matters her family was unchanged : she remained, if filia-
familias, subject to patria potestas, and did not become quasi filia-
familias in the household of her husband : her old ties of agnation
in her father's family were not snapped, and no new ties of agna-
tion in her husband's family were acquired. Divorce (diffarreatio,
Festus, s.v.) was almost impossible, and this indissol ability of the
connexion contributed to the unpopularity of confarreatio. More-
over, it was a religious ceremonial, requiring the presence of the
pontifex maximus and flamen dialis, and as such it vanished with
vanishing paganism. The ten witnesses apparently represented the
ten curiae of which the tribe was composed, or the ten gentes of
which the curia was composed, or, if the decimal division continued
further, the ten families of which the gens was composed.
70 DE PERSONIS [i. §§ 108-115 b.
The purchase of the wife by the husband, a widespread custom in a
primitive state of society, was no doubt one of the ways in which Koman
marriage originated. The exact nature of Coemption, in consequence
of the defective state of the Veronese manuscript, must, however,
remain a mystery. Coemption was a form of mancipation, § 113, but
in virtue of the provision of the Twelve Tables, Cum nexum faciet
mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every
mancipation depended on the mancipii lex, the accompanying nuncu-
pation or verbal declaration of its condition, intentions, purposes ; as
in English conveyancing the nature of a grant is limited and deter-
mined by the habendum and tenendum of the deed. We are informed
that in coemption, the formula was not the same as in other mancipa-
tions, § 123, but we are not informed what it was. Even in Cicero's
time many advocates were ignorant of the legal effect of a coemption
because they were ignorant of the precise terms of the formula in
which it was concluded, De Orat. 1, 56. The word itself may suggest
a conjecture that it was a conveyance of the husband to the wife as
well as of the wife to the husband ; and this is supported by Servius
on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who
quoted apparently from Ulpian : ' An ancient nuptial form wherein
husband and wife made a mutual purchase, to bar the inference
that the wife became a slave.' Plutarch informs us that the wife
asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest.
Eom. 28: 'Where thou art master, I am mistress.' Boethius on
Cicero, Topica, 3, 1 4, quoting from Ulpian, says : ' The man and
woman interrogated one another. He asked her if she wished to
be mother of his household ; she answered, Yes. She asked him
if he wished to be father of her household ; he answered, Yes.
And thus the woman passed into the hand of the man, and was
called the mother of his household, with the status of filiafamilias.'
According to Cicero, the wife was only called materfamilias when
subject to hand : Genus est uxor ; ejus duae formae ; una matrum-
familias, eae sunt, quae in manum convenerunt, altera earum quae
tantummodo uxores habentur, Top. 3, 14. Gellius says the same,
18, 6, 7 : Tradiderunt matremfamilias appellatam esse earn solam
quae in mariti manu mancipioque aut in ejus, in cujus maritus manu
mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the
title to a wife who has become subject to manus by coemption :
Quae autem in manum per coemptionem convenerant, hae matres-
familias vocabantur, quae vero usu et farreatione, minime, ibid.
However this may have been, in one sense the name was a mis-
nomer, for a wife subject to hand was not sui juris (materfamilias),
but alieni juris (filiafamilias) : and that materfamilias denoted a
woman sui juris, whether married or unmarried, as opposed to
i. §§108-115 6.] DE MANY 71
a filiafamilias or woman alieni juris, appears from Ulpian (4, 1) : Sui
juris sunt familiarum suarum principes, id est paterfamiliae itemque
materfamiliae. (See Muirhead's Eoman Law, App. B.)
If the wife was subject to the power of her father, she required
his sanction before she could make a coemption with her husband. If
the wife was independent of parental control, she required the
sanction of her guardians, who under the old law would have been
her nearest agnates.
Coemption was sometimes employed for other purposes than
matrimony, and was then called fiduciary coemption. Sometimes
the intention was to extinguish the obligation of onerous sacred
rites attached to the estate of an heiress : Jure consultorum ingenio
senes ad coemptiones faciendas interimendorum sacrorum causa re-
perti sunt, Cic. Pro Murena, 12, § 27. 'Juristic ingenuity invented
coemptions with aged men for extinguishing sacred rites.' Savigny
(Verm. Schr. 1, 190) gives the following conjectural explanation of
the process. The obligation to the sacra belonged to the Quiritary
ownership of the universitas of the woman's estate. This, by the
effect of coemption, vested in the coemptionator, an old man ap-
proaching dissolution (senex coemptionalis), with whom a fictitious
marriage was contracted, and who took the estate as universal
successor. He forthwith dismissed the woman from his manus by
remancipation and manumission : and then, according to covenant,
restored to her the estate in portions ; that is, released from the
ritual obligations, which only attached to the universitas. On his
death, as Quiritary owner of the empty universitas, the obligation
to the rites was extinguished : for the succession (hereditas) to the
coemptionator did not pass to the woman, as she by remancipation
had ceased to be [such was the hypothesis of Savigny before the
discovery of Gaius: instructed by Gaius we must rather say, as
mere fiduciary coemption had not the effect of making her] his
filiafamilias and sua heres. The phrase senex coemptionalis denotes
a slave. From which it may be inferred that a slave, useless for
any other purpose, and therefore very cheap, was sometimes bought
and manumitted to serve as coemptionator. In such a case the
whole transaction would be very inexpensive, if not very decorous.
This mode of getting rid of sacred rites is compared by Ihering,
§ 58, with the institution of a slave as heir to bear the infamy
of bankruptcy instead of the deceased testator, 2 § 154. Universal
succession was an institution which Koman law only admitted in
certain cases, 2 § 98, including the cases of Manus and Adrogatio.
If universal succession was required for the purpose of extinguishing
the obligation to sacred rites attaching to the estate of an heiress, we
might have supposed that Adrogatio would have been a less offensive
72 DE PERSONIS [i. §§ 108-115 6.
mockery than a fictitious marriage (fiduciary coemption) ; adrogatio,
however, was inapplicable, because, as we have seen, up to a late
period of Roman law women were incapable of being adrogated.
Moreover, the Pontifices, who had a veto on adrogations, were not
likely to lend themselves readily to the extinction of sacred rites.
(Comments of other modern writers on this subject are noticed in
Roby's Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to
select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. 'There
are many wise legal provisions that juristic ingenuity has defeated
and perverted. All women on account of their weakness of judge-
ment were placed by our ancestors under a guardian's control :
jurists invented a kind of guardian subject to female dictation.'
(Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break
the ties of agnation and thus acquire testamentary capacity, § 1 1 5 a ;
Cic. Top. 4, 1 8. The coemptionator (party to the coemption) in virtue
of the manus thereby acquired was able, and by a fiducia or trust was
bound, to sell the woman into bondage as if she were filiafamilias :
accordingly he remancipated her to a third person, who by manumit-
ting her in accordance with another fiducia became her patron, and as
patron, in accordance with the Twelve Tables, §§ 165, 166, her statu-
tory guardian (tutor legitimus), and, as having acted under a fiducia,
her fiduciary guardian, § 1 1 5. It may occur to us that as coemptio
required the sanction of a father or guardian, this process could not
be of much use in getting rid of a guardian or defeating the claims
of agnatic guardians to a woman's intestate succession ; but it must
be remembered that the nearest agnate, who alone was heir and
guardian, was a variable person, and that a given nearest agnate
might be not indisposed to allow a woman to acquire the free dis-
position of her property and to defeat the claims of those who, after
his death, would be nearest agnates and presumptive heirs. At all
events, however indisposed the guardian might be to such a course,
a period at last arrived when the auctoritas of the guardian, though
still required as a formality, could be extorted, if not yielded volun-
tarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex
Claudia, §171, and thus the woman would be free from the control
of an interested guardian in the disposition of her property during
her lifetime. She would still however have had little more than
a life interest until she acquired the power of testation. For when
wills could be only executed in the comitia, 2 § 101, she would be
excluded from testation, as well as from adrogation, by exclusion from
the comitia : and after the introduction of the mancipatory will she
I. §§108-115 6.] DE MANY 73
was still barred by her agnates' indefeasible claims to her reversion.
Agnation itself, however, was defeasible by means of coemptio and
remancipatio and the consequent capitis minutio ; and when the
auctoritas of the guardian for these proceedings could be extorted, § 1 90,
the woman had practically acquired power of testation, although its
exercise was hampered by a tedious formality, which was not abolished
by the emperor Claudius when he abolished agnatic guardianship.
It was not till the senatusconsult of Hadrian that the rupture of
the ties of agnation by means of coemptio ceased to be necessary to
the validity of a woman's will, §115a;2§§112, 118; though it had
probably been previously a mere formality (the woman having power
to extort at pleasure the auctoritas of the agnatic guardian) even before
the time of Claudius. As we learn from the text coemption had not
been required previously in the case of certain privileged women.
Cf. §§ 145, 194 ; 3 § 44 ; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation,
by which the party to whom the mancipation was made undertook
to remancipate under certain conditions. Besides its use in co-
emption, it was employed, as we shall see presently, in emancipation
and adoption, and was the earliest form of constituting the contracts
of deposit and mortgage, 2 §§ 59, 60 ; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts
were defined, must not be identified with nuncupatio. Nuncupatio
forms an integral part of Mancipatio, and what was declared in it
would constitute a title under the law of the Twelve Tables. Pactum
fiduciae, on the other hand, never coalesces with Mancipatio, but
remains a separate adjunct, originally only morally binding on the
transferee, but afterwards forming an obligation of jus gentium, and
affording ground to support a bonae fidei actio. Herein Mancipatio is
contrasted with Tradition and the dispositions of natural law. Con-
ventions accompanying Tradition unite with it, and form a single con-
solidated disposition ; and the pacts annexed (pacta adjecta) to any
contract of natural law (venditio, conductio, mandatum, &c.) become
integral parts thereof, and are enforced by the action brought on the
principal contract. Stipulatio, as a civil disposition, seems to have
originally resembled Mancipation in this respect : at least it was a
late period of the law when the rule was clearly established that :
Pacta incontinent! facta stipulation! inesse creduntur, Dig. 12, 1, 40,
i. e. Pacts made contemporaneously with a stipulation are deemed to
be portions of the stipulation. Savigny, § 268. It is true that
a Pactum adjectum respecting interest and annexed to the gentile
disposition Mutuum could not be enforced by an action brought upon
the Mutuum: but that was a consequence of the nature of the
action (condictio certi) whereby Mutuum was enforced, and which
74
DE PERSONIS
[i. §§ 116-123.
could not embrace any sum beyond the original subject of the
Mutuum ; 3 §§ 90, 91, comm.
DE MANCIPIO.
§ 116. Superest ut expona-
mus quae personae in manciple
sint.
§ 117. Omnes igitur libero-
rum personae siue masculini
siue femimni sexus quae in
potestate parentis sunt manci-
pari ab hoc eodem modo pos-
sunt, quo etiam serui manci-
pari possunt.
§ 1 18. Idem iuris est in earum
personis quae in manu sunt ; |
coemptionatoribus eo-
dem modo possunt
-apud
coemptionatorem fi|liae loco sit
nupta sit, nihilo
minus etiam quae ei nupta
non sit nee ob id filiae loco sit,
ab eo mancipari possit.
§ 118 a. Plerumque (uero
turn) solum et a parentibus et
a coemptionatoribus mancipan-
tur, cum uelint parentes coem-
ptionatoresque (ex} suo iure
eas personas dimittere, sicut
inferius euidentius apparebit.
§ 119. Est autem manci-
patio, ut supra quoque diximus,
•imaoinaria quaedam uenditio ;
quod et ipsum ius proprium
ciuium Romanorum est, eaque
res ita agitur: adhibitis non
minus quam quinque testibus
ciuibus Romanis puberibus et
praeterea alio eiusdem condi-
cionis, qui libram aeneam te-
neat, qui appellatur libripens,
is qui mancipio accipit, aes
§ 116. It remains to examine
what persons are held in man-
cipation.
§ 1 17. All children, male or fe-
male, in the power of their father
are liable to be mancipated by
their father just as his slaves may
be mancipated.
§ 118. A woman in the hand is
subject to the same mode of aliena-
tion, and may be mancipated by
the person who has acquired her
by coemption just as a daughter
may be mancipated by her father :
and although the acquirer of her
by coemption otherwise than for
the purpose of marriage has not
the power of a father over her,
nevertheless, though he is not her
husband, and therefore has not
the status of a father, he can dis-
pose of her by mancipation.
§ 1 1 8 a. Almost the sole occa-
sion of mancipation by a parent
or by the acquirer of a woman by
coemption is when the parent or
acquirer by coemption designs to
liberate the person mancipated
from his lawful control, as will
presently be more fully explained.
§ 119. Mancipation, as before
stated, is an imaginary sale, belong-
ing to that part of the law which
is peculiar to Eoman citizens, and
consists in the following process :
in the presence of not fewer than
five witnesses, citizens of Eome
above the age of puberty, and an-
other person of the same condition,
who holds a bronze balance in his
hands and is called the balance
holder, thealieneeholdingabronze
ingot in his hand, pronounces the
J.§§ 116-123.]
DE MANCIPIO
75
tenens ita dicit : HVNC EGO HO-
MINEM EX IVBE QVIBITIVM MEVM
ESSE AIO ISQVE MIHI EMPTVS E-
STO HOC AEKE AENEAQVE LIBRA ;
deinde aere percutit libram id-
que aes dat ei a quo manciple
accipit quasi pretii loco.
§ 120. Eo modo et seruiles
et liberae personae mancipan-
tur ; animalia quoque quae
mancipi sunt, quo in numero
habentur boues, equi, muH,
asini ; item praedia tarn urbana
quam rustica quae et ipsa man-
cipi sunt, qualia sunt Italica,
eodem modo solent mancipari.
§ 121. In eo solo praediorum
mancipatio a ceterorum manci-
patione differt, quod personae
seruiles et liberae, item anima-
lia quae mancipi sunt, nisi in
praesentia sint, mancipari non
possunt; adeo quidem, ut eum
(quiy mancipio accipit, adpre-
hendere id ipsum quod ei man-
cipio datur necesse sit; unde
etiam mancipatio dicititr, quia
manu res capitur ; praedia uero
absentia solent mancipari.
§ 122. Ideo autem aes et li-
bra adhibetur, quia olim aereis
tan turn nummis utebantur, et
erant asses, dupundii, semisses,
quadrantes, nee ullus aureus
uel argenteus nummus in usu
erat, sicut ex lege xil tabula-
rum intellegere possumus; eo-
ruinque nummorum uis et po-
testas non | in numero erat sed
in pondere as|ses librales
erant, et dupundii 1 ; unde
etiam dupundius dictus est
quasi duo pondo, quod nomen
adhuc in usu retinetitr. semis-
ses quoquQ et quadrantes pro
following words: THIS MAN I
CLAIM AS BELONGING TO ME BY
BIGHT QUIRITARY AND BE HE (or,
HE IS) PURCHASED TO ME BY THIS
INGOT AND THIS SCALE OF BRONZE.
He then strikes the scale with the
ingot, which he delivers to the
mancipator as by way of purchase
money.
§ 120. By this formality both
slaves and free persons may be
mancipated, and also such animals
as are mancipable, namely, oxen,
horses, mules, and asses : im-
movables also, urban and rustic,
if mancipable, such as Italic lands
and houses, are aliened by the
same process.
§ 121. The only point wherein
the mancipation of land and build-
ings differs from the mancipation
of other things is this, that manci-
pable persons, whether slaves or
free, and animals that are manci-
pable, must be present to be manci-
pated : it being necessary that the
alienee should grasp the object to
be mancipated with his hand, and
from this manual prehension the
name of mancipation is derived ;
whereas land and buildings may
be mancipated at a distance from
them.
§ 122. The reason of using a
bronze ingot and a weighing scale
is the fact that bronze was the
onlymetal used in the ancient cur-
rency, which consisted of pieces
called the as, the double as, the
half as, the quarter as, and that
gold and silver were not used as
media of exchange, as appears by
the law of the Twelve Tables :
and the value of the pieces was
not measured by number but by
weight. Thus the as was a pound
of bronze, the double as two
pounds, whence its name (du-
pondius), which still survives ;*
while the half as and quarter as
76
DE PERSONIS
[i.§§ 116-123.
rata scilicet portione ad pon|-
dus examinati erant. qui
daba£ olim \ pecuniara, non nu-
merabat earn, sed appendebat ;
unde serui quibus permittitur
administratio pe|cuniae dispen-
satores appellati sunt et 1
§ 123. coemptioj
a quidem quae coemlptionem
fac seruilem condici|onem
a 1 mancipad mancipataeue
seruorum loco con|stituuntur,
adeo quidem, ut ab eo cuius in
mancipio sunt neque heredi-
tatem neque legata aliter capere
possint, quam (si) simul eodera
testamento liberi esse iubean-
tur sicut iuris est in persona
seruorum. sed differentiae ratio
manifesto est, cum a parentibus
et a coemptionatoribus isdem
uerbis mancipio accipiantur
quibus serui; quod non similiter
jit in coemptione.
were masses denned by weighing
those respective fractions of a
pound. Accordingly, money pay-
ments were not made by tale, but
by weight, whence slaves entrust-
ed with the administration of
money have been called cashiers.
§ 123. If it is asked in what
respect coemptive conveyance dif-
fers from mancipation, the answer
is this, that coemption does not
reduce to a servile condition,
whereas mancipation reduces to
so completely a servile condition
that a person held in mancipation
cannot take as heir or legatee
under the will of the person to
whom he is mancipated, unless
he is enfranchised by such will,
thus labouring under the same
incapacity as a slave : the reason
too of the difference is plain,
as the form of words employed
in mancipation by a parent or pre-
vious acquirer by coemption is
identical with that used in the
mancipation of slaves, but it is
not so in coemptive conveyance.
In what respects did domestic bondage (mancipium or mancipii
causa) differ from slavery (servitus) ? Bondage was an institute of
jus civile, slavery an institute of jus gentium, § 52. Bondage
was the result of mancipation by a parent or coemptionator, and
only a Koman citizen was capable of becoming a bondsman. The
proprietor has possession of the slave, the lord has no possession
of the bondsman, 2 § 90. The bondsman was civis Komanus,
though what became of his political capacities during his bondage
is uncertain ; and he was liber, though alieni juris ; he was free in
respect of the rest of the world, he was only a bondsman in respect
of the person in whose mancipium he was. Thus the status of man-
cipium was relative ; a man could only be in mancipio in relation
to a given domestic lord : whereas the status of slavery was absolute ;
a man might be a slave without an owner (servus sine domino) :
for instance, a person condemned for a capital crime, who was
called the slave of punishment (servus poenae, Inst. 1, 12, 3), or
a slave abandoned (derelictus) by his owner. Accordingly, falling
into servitus was maxima capitis diminutio, while falling into man-
i. §§ 116-123.] DE MANCIPIO 77
cipii causa was minima capitis diminutio, § 162. The bondsman
had no proprietary rights against his superior, 2 § 86, but he had
some of the primordial rights ; for instance, he could sue his
superior for outrage, § 141 ; and he was capable of civil wedlock and
could beget Roman citizens, though during his bondage his patria
potestas was in abeyance, § 135. Release from bondage, as from
slavery, was by manumission, § 138, and the manumitter became the
patron of the released person, §§ 166, 195 a, but the manumitted
bondsman became ingenuus, whereas the manumitted slave became
libertinus. Bondage did not exist in the time of Justinian.
§ 119. The libripens must not be dumb, Ulpian, 20, 7: probably
because he had to utter the formula preserved by Festus, Raudusculo
libram ferito, i. e. to invite the emptor to strike the scale with the
ingot, in order to show by the ring that the metal was genuine.
Ihering, § 46, n. 708.
§ 120. Praedia Italica. Under the first emperors the body of the
Roman world consisted of three members, the imperial city, Rome,
Italy, and the provinces, the two former being highly privileged in
comparison with the third. After the Social War, 91-88 B.C., all
Italy had acquired Roman citizenship, but Italic soil was not a
purely local appellation, as jus Italicum was conceded to many
provincial cities. Jus Italicum, or Italian privileges, implied (i) a
free municipal constitution with elective magistrates (generally
called duumviri juri dicundo) possessed of independent jurisdiction ;
and, what was still more important, (2) immunity from direct
taxation, whether in the form of capitation tax (tributum capitis),
imposed on all who were not holders of land (tributarii), or in the
form of land tax (tributum agri), imposed on holders of land (pos-
sessores), and paid in provinces of the people to the aerarium under
the name of stipendium, in provinces of the emperor to the fiscus
under the name of tributum, 2 § 21. Italic soil was (3) subject to
Quiritary ownership (dominium ex jure Quiritium) and acquirable
and transferable by usucapion and mancipation. Under the later
emperors, as early as the time of Diocletian, the Roman world was
equalized, not by the elevation of the depressed members, but by
depression of those formerly favoured: Italy was shorn of her
privileges, and all the empire became provincial.
§ 122. Chemical analysis shows that the aes of which Roman
coins consisted was bronze, a mixture of copper (cuprum), tin, and
lead. [English bronze is an alloy composed of ninety-five parts of
copper, four parts of tin, and one part of zinc.] Brass, a mixture
of copper and calamine (cadmeia) or zinc, was called orichalcum.
Silver currency was first introduced B.C. 269. The primitive system
of currency was everywhere currency by weight, and every system
78
DE PERSONIS
[i. §§ 124-131.
of coinage was originally identical with a system of weights, the
unit of value being the unit of weight of some selected metal
(Jevons, Money, ch. 9). The pieces of which a currency by weight
consists are not properly coins, for coins are ingots of which the
weight and fineness are certified by the integrity of the designs
impressed upon the surfaces of the metal (ibid. ch. 7). Money
is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that
which must be tendered by the debtor and accepted by the creditor
in discharge of a debt ; e. g. in England silver coin is a legal
tender only to the amount of forty shillings in any one payment,
bronze coins are a legal tender only to the aggregate amount of
one shilling. Bank of England notes are a legal tender everywhere
in England but at the bank, i. e. are there convertible into gold.
§ 123. As coemptio was a form of mancipatio, how does it happen
that manus, the result of coemptio, differs from mancipium, the
result of mancipatio ? Because, Gaius answers, the formula of
words used in the mancipatio that entered into coemptio was speci-
fically different from the formula employed on other occasions of
mancipation.
QVIBUS MODIS IVS POTESTATIS SOLVATVR.
§ 124. Videamus nunc quo-
modo hi qui alieno iuri subiecti
sunt eo iure liberentur.
Inst. l,12pr.
§ 125. Ac prius de his dispi-
ciarnus qui in potestate sunt.
§ 126. Et quidem serui quem-
admodum potestate liberen-
tur, ex his inteUegere possuinus
quae de seruis manumittendis
superius exposuimus.
Inst. 1. c.
§ 127. Hi uero qui in pote-
state £>arentis sunt, mortuo eo
sui iurisfiunt. sed hoc disiin-
ctionem recipit ; nam mortuo
patre sane omni modo filii filiae-
ue sui iuris efficiuntur ; mor-
tuo uero auo non omni modo
nepotes neptesue sui iuris fiunt,
sed ita, si post mortem aui in
patris sui potestatem recasuri
non sunt. itoque si moriente
auo pater eorum et uiuat et in
§ 124. Let us now examine the
modes whereby persons depen-
dent on a superior are freed from
their dependence.
§ 125. And, first, let us con-
sider persons subject to power.
§ 126. How slaves are liber-
ated may be intelligible from
what we have explained above
about servile manumission.
§127. Children under paternal
power become independent at the
parent's death, subject, however,
to this reservation : the death of
a father always releases his sons
and daughters from dependence :
the death of a grandfather only
releases his grandchildren from
dependence, provided that it does
not subject them to the power of
their father : for if at the death
of the grandfather the father is
alive and in his power, the grand-
I. §§ 124^131.] Q. M. IVS POTESTATIS SOLVATVR 79
potestate patris (sui) fuerit,
tune post obitum aui in patris
sui potestate fiunt; si uero is,
quo tempore auus moritur, aut
iam mortuus est aut exiit de
potestate (patris, tune hi, quia
in potestatem) eius cadere non
possunt, sui iuris fiunt.
Inst. 1. c.
§ 128. Cum autem is cui
ob aliquod maleficium ex lege
Cornelia aqua et igni interdici-
tur ciuitatem Romanam amit-
tat, sequitur ut, quia eo modo
ex numero ciuium Romanorum
tollitur, proinde ac mortuo eo
desinant liberi in potestate eius
esse ; nee enim ratio patitur, ut
peregrinae condicionis homo
ciuem Romanum in potestate
habeat. pari ratione et si ei
qui in potestate parentis sit
aqua et igni interdictum fuerit,
desinit in potestate parentis es-
se, quia aeque ratio non patitur,
ut peregrinae condicionis homo
in potestate sit ciuis Romani
parentis. Inst. 1, 12; 1.
§ 129. Quodsi ab hostibus
captus fuerit parens, quamuis
seruus hostium fiat, tamen pen-
det ius liberorum propter ius
postliminii, quo hi qui ab hosti-
bus capti sunt, si reuersi fue-
rint, omnm pristina iura reci-
piunt ; itaque reuersus habebit
liberos in potestate. si .uero
illic mortuus sit, erunt quidem
liberi sui iuris ; sed utrum ex
hoc tempore quo mortuus est
apud hostes parens, an ex illo
quo ab hostibus captus est, du-
bitari potest. ipse quoque
films neposue si ab hostibus
captus fuerit, similiter dicemus
propter ius postliminii potesta-
tem quoque parentis in suspense
esse. Inst. 1, 12, 5.
children, after the grandfather's
death, are in the power of the
father ; but if at the time of the
grandfather's death the father is
dead or not subject to the grand-
father, the grandchildren will not
fall under his power, but become
independent.
§ 128. As interdiction from fire
and water for an offence against
the Cornelian law involves loss of
citizenship, such removal of a man
from the list of Roman citizens
operates, like his death, to liberate
his children from his power, for it
is inconsistent with civil law that
an alien should exercise parental
power over a citizen of Rome :
conversely, the interdiction from
fire and water of a person subject
to parental power terminates the
power of the parent, because it is
a similar inconsistency that a
person of alien status should be
subject to the parental power of
a Roman citizen.
§ 1 29. Though the hostile cap-
ture of the parent makes him a
slave of the enemy, the status of
his children is suspended by the
jus postliminii, whereby on escape
from captivity a man recovers all
former rights : accordingly, if the
father returns he will have his
children in his power ; if he dies
in captivity his children will be
independent, but whether their
independence dates from the death
of the parent or from his capture
by the enemy may be disputed.
Conversely, if a son or grandson
is captured by the enemy, the
power of his ascendent is also
provisionally suspended by the
jus postliminii.
80 DE PERSONIS [i. §§ 132-136.
§ 130. Praeterea exeunt li- §130. Further, a son is liberated
beri uirilis sexus de parentis from parental power by his in-
potestate si Gamines Diales in- auguration as flamen of Jove, a
augurentur, et feminini sexus daughter by her selection for the
si uirgines Vestales capiantur. office of Vestal virgin-
§ 131. Olim quoque, quo § 131. Formerly, too, when
tempore populus Romanus in Rome used to send colonies into
Latinas regiones colonias de- the Latin territory, a son who by
ducebat, qui iussu parentis in his parents' order enrolled his
eolomam Latinam nomen dedis- name in a colony ceased to be
sent, desinebant in potestate under parental power, since he
parentis esse, quia efficerentur was made a «tizen of another
alterius ciuitatis dues. state.
§ 128. Relegation was a milder form of punishment than de-
portation, and involved no loss of civitas nor of domestic rights,
Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person re-
turned from captivity, or the recovery of rights over a person or
thing recovered from hostile possession. The word postliminium
seems to be derived from pot, the root of potestas or possessio,
and limen or stlimen = ligamen, and therefore would denote the
bridging over of the interval of captivity by a fiction of continued
capacity or possession, ot a doorway is bridged over by a lintel
(limen).
§ 130. In imitation of the ancient law Justinian enacted that
certain dignities should release from patria potestas ; for instance,
patriciatus and the episcopate, the latter because it made a man
spiritual father of all mankind, Novella, 81.
§ 131. The Latini or members of coloniae Latinae were an inter-
mediate class between cives and peregrini. They differed from
peregrini in that they had commercium, i.e. capacity of Quiritary
ownership with its incidents, and they differed from cives in not
having connubium, and consequently being incapable of patria
potestas, Cic. Pro Caecina, 35. Cf. § 22, comm. A Roman citizen
could only become a Latin with his own consent. Qui cives
Romani in colonias Latinas proficiscebantur, fieri non poterant
Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30.
' Roman citizens who went to Latin colonies did not lose their
citizenship without voluntary enrolment among the colonists.' See
also Cic. Pro Balbo, 11.
§ 132. Praeterea emancipa- § 132. Emancipation also libe-
tione desinunt liberi in pote- rates children from the power of
state parentum esse. sed filius the parent, a son being liberated
I. §§ 132-136.] Q. M. IVS POTESTATIS SOLVATVR
81
quidem tribus mancipationibus,
ceteri uero liberi siue masculini
sexus siue feminini una manci-
patione exeunt de parentum
potestate ; lex enim xn tabu-
larum tantum in persona filii
de tribus mancipationibus lo-
quitur his uerbis si PATER FI-
LIVM (T.EB) VENVM DVIT, A PA-
TBE FILTVS LIBER ESTO. eaque
res ita agitur : mancipat pater
filium alicui ; is eum uindicta
manumittit ; eo facto reuertitur
in potestatem patris ; is eum
iterum mancipat uel eidem uel
alii (sed in usu est eidem man-
cipari) isque eum postea sirni-
liter uindicta manumittit ; eo
facto rursus in potestatem pa-
tris reuertitur ; tertio pater eum
mancipat uel eidem uel alii (sed
hoc in usu est, ut eidem man-
cipetur), eaque mancipatione
desinit in potest&te patris esse,
eftamsi nondum manumissus sit
sed adhuc in causa mancipii.
sj — | 1 missi-
(3 uersus in G legi nequeunt.)
Inst. 1, 12, 6 ; Epit. 1, 6, 3.
§ 132 a.
-pa-
trono in bonis
(3 ueraU8 in C legi nequeunt.)
— feminae una \ manci-
patione exeunt de patris pote-
state 1 manumissae
fuerint s 1 ( 1
Inst. 1. c.
by three mancipations, other
issue, male or female, by a single
mancipation ; for the law of the
Twelve Tables only mentions
three mancipations in the case
of the son, which it does in the
following terms : IF A FATHER
SELL A SON THREE TIMES, THE SON
SHALL BE FREE FROM THE FATHER.
The ceremony is as follows : the
father mancipates his son to some
one; the alienee manumits him by
fictitious vindication, whereupon
he reverts into the power of his
father ; the father again manci-
pates him to the same or a diffe-
rent alienee, usually to the same,
who again manumits him by
fictitious vindication, whereupon
he reverts a second time into the
power of his father ; the father
then mancipates him a third time
to the same or a different alienee,
usually to the same, and by this
third mancipation the son ceases
to be in the power of the father
even before manumission, while
still in the status of a person
held in mancipation. [The alienee
or fiduciary father should then
remancipate him to the natural
father, in order that thereupon
the natural father by manumit-
ting him may acquire the rights
of patron instead of the fiduciary
father.]
§ 1 32 a. A manumitter of a free
person from the state of man-
cipium has the same rights to the
succession of his property as a
patron has in respect of the pro-
perty of his freedman. Women
and male grandsons by a son
pass out of the power of their
father or grandfather after one
mancipation ; but unless they are
remancipated by their fiduciary
father, and manumitted by their
natural father, the latter has no
rights of succession to their pro-
perty.
G
82
DE PERSONIS
[i. §§ 132-136.
§ 133. Admonendi autem
sumus liberum esse arbitrium
et qui filium et ex eo nepotem
in potestate habebit, filium
quidem de potestate dimittere,
nepotem uero in pot&state re-
tinere ; uel ex diuerso filium
quidem in potestate retinere,
nepotem uero manumittere,
uel omnes sui iuris efficere.
eadem et de pronepote dicta
esse intellegemus.
Inst. 1, 12, 7 ; Gaius in Dig.
1,7,28.
§134.
-et duae
intercedentes manumissiones
proinde fiunt, ac fieri solent
cum ita eum pater de potestate
dimittit, ut sui iuris efficicttur.
deinde aut patri remancipatur,
et ab eo is qui adoptat uindicat
apud praetorem filium suum
esse, et illo contra non uin^-
cante (a) praetore uindicanti
filius addicitur ; aut non reman-
cipatiir patri, sed ab eo uindi-
cat is qui adop£a£, apud quern
in teitia mancipatione est ; sed
sane commodius est patri re-
mancipari: in ceteris uero
liberorum personis sen mascu-
lini seu feminini sexus una sci-
licet mancipatio sufficit, et aut
remancipan-tur parenti aut non
remancipantur. Eadem et in
prouinciis apud praesidem pro-
uinciae solent fieri.
Inst. 1,12,8.
§ 135. Qui ex filio semel ite-
rumue mancipato conceptus
est, licet post tertiam mancipa-
tionem patris sui nascatur,
tamen in aui potestate est, et
ideo ab eo et ernancipari et in
adoptionem dari potest. At is
§ 133. But it should be noticed
that a grandfather who has
both a son, and by his son a
grandson, in his power, may either
release his son from his power
and retain the grandson, or retain
the son and manumit the grand-
son, or emancipate both son and
grandson ; and a great grand-
father has a similar latitude of
choice.
§ 134. A father is also divested
of power over his children by
giving them in adoption. To give
a son in adoption, the first stage
is three mancipations and two
intervening manumissions, as in
emancipation ; after this the son is
either remancipated to the father,
and by the adopter claimed as son
from him by vindication before
the praetor, and in default of
counterclaim by the natural father
is awarded by the praetor to the
adoptive father as his son; or
without remancipation to the
natural father is directly claimed
by the adoptive father by vin-
dication from the alienee of the
third mancipation (fiduciary fa-
ther) ; but it is more convenient
to interpose a remancipation to
the natural father. In the case
of other issue, male or female, a
single mancipation suffices, with
or without remancipation to the
natural father. In the provinces
a similar ceremony can be per-
formed before the president of
the province.
§ 135. A grandson begotten
after the first or second mancipa-
tion of the son, though born after
the third mancipation, is subject
to the power of the grandfather,
and may by him be given in
adoption or emancipated: a grand-
i. §§ 132-136.] Q. M. IVS POTESTATIS SOLVATVR
83
qui ex eo filio conceptus est qui
in tertia mancipatione est non
nascitur in aui potestate. sed
eum Labeo quidem existimat m
eiusdem mancipio esse cuius et
pater sit ; utimur autem hoc
iure, ut quamdiu pater eius in
mancipio sit, pendeat ius eius ;
et siquidem pater eius ex man-
cipatione manumissus erit, ca-
dat in eius potestatem ; si uero
is dum in mancipio sit deces-
serit, sui iuris fiat.
§ 135 a. | Eadem scilicet
1 nam ] ut supra
diximus, quod in filio faciunt
tres manci|pationes, hoc facit
una mancipatio in nepote.
§136.-| 1 1
Maximi et | Tuberonis cautum
est, ut haec quod ad sacra tan-
turn uideatur in manu esse,
quod uero ad ceteras causas
proinde habeatur, atque si in
manum non conuenisset.| 1
potestate parentis libe-
rantur ; nee in terest, an in uiri
sui manu smt an extranei,
quamuis hae solae loco filia-
rum habeawtur quae in uiri
malnu sunt.
son begotten after the third man-
cipation is not born in the power
of the grandfather, but, according
to Labeo, is born in mancipation
to the person to whom his father
is rnaneipated. The rule, how-
ever, which has obtained accept-
ance with us is, that so long as the
father is in mancipation the status
of the child is in suspension, and if
the father is manumitted the child
falls under his power ; if the
father dies in mancipation the
child becomes independent.
§ 135 a. The rule is the same
in the case of a child begotten
of a grandson who has been
once mancipated, but not yet
manumitted ; for, as before men-
tioned, the result of three man-
cipations of the son is obtained
by a single mancipation of the
grandson.
§ 136. A wife subjected to the
hand of a husband by confarrea-
tion is not thereby freed from
the power of her father ; and this
is declared by the senatusconsult
of the consuls of Maximus and
Tubero respecting the priestess of
Jove, according to which she is
only in the marital hand as far as
the sacra are concerned, the status
of the wife being unaffected in
other respects by such subjection.
Subjection to hand by coemption
liberates from the power of the
parent, and it is immaterial
whether it is a coemption sub-
jecting the woman to the hand
of a husband or to the hand of
a stranger, although the status
of quasi daughter only belongs
to a woman in the hand of a
husband.
§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this
passage, mentions as present at an emancipation, besides the five
witnesses and libripens, a seventh person called antestatus, who
is also mentioned in the bronze tablet referred to in the remarks
a a
84 DE PERSONIS [i. §§ 132-136.
on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may
have been to ask the witnesses whether they were bearing witness
to the transaction (antestari). Cf. Koby, Private Law, pp. 180, n. 2,
423, n. 3.
The vindicta or wand used in manumission, as already stated, was
the rod or verge symbolizing a lance carried by the parties in a real
action, 4 § 1 3. The status of freedom (libertas) whether as opposed to
slavery or to bondage (mancipii causa) was a real right (jus in rem),
and therefore a subject to be contested in a vindicatio. Manumis-
sion by vindicta was a collusive vindicatio, in o.'her words, an in
jure cessio. Cf. Roby, 1, p. 26, n. 1.
The epitome of Gaius (1. c.) calls the person, to whom the son was
mancipated by pater naturalis, pater fiduciarius, which implies that
the mancipation was accompanied by a fiducia or declaration of
trust. The trust would be that the pater fiduciarius should make
default or confess in the subsequent in jure cessio.
§ 134. Assuming that in adoption, as in emancipation, the person
to whom the son was mancipated was called pater fiduciarius, we
find in adoption three fathers in the field, pater naturalis, pater
fiduciarius, and pater adoptivus. Remancipation to the natural
father added a stage to the process ; but is described as more con-
venient, because it reduced the number of actors from three to two ;
for it enabled the part of pater fiduciarius to be played .by pater
adoptivus. It appears from § 135 (cf. however § 141) that though
the status of bondage was purely formal, yet perhaps to give an
air of reality to the drama, the status was sometimes made to
have a certain duration. So when a prince is advanced from the
rank of private to that of general, a certain interval is interposed
between the intermediate promotions for the sake of decorum,
though, the whole proceeding being unreal, all the steps, if the
authorities were so disposed, might be compressed into a single day.
Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other
kinds of status, a real right, the claim of a person as filiusfamilias
was a matter to be contested in a real action or vindicatio brought
against the person in whose possession he was. This would seem
the more obvious in primitive times, when probably no distinction
was made between patria potestas and dominica potestas, i.e. be-
tween paternal power and absolute proprietorship. Such vindicatio
was sometimes a matter of contentious (not voluntary) jurisdiction,
i.e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that
the ground of making a claim of this kind must be particularly
specified (adfecta causa) in the vindication. The ordinary mode
of judicially determining the status of a child in case of dispute was
I. §§ 137-141.] Q. M. MANY ET MANCIPIO LIBEEENTVR 85
by a praejudicium, 4 § 44, comm. The father could compel any one,
who had possession of his child, to produce him by the interdictum
de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm.
In case of dispute between paterfamilias and filiusfamilias inter
se, recourse might be had to the extraordinaria cognitio of the
magistrate. Sohm's Inst. § 101.
Justinian simplified the formalities of emancipation and adoption.
He allowed the former to be accomplished by a simple declaration
of the father before a competent judge or magistrate (Emancipatio
Justinianea) ; and the latter after appearance of all the parties before
such a judge, insinuatio, i.e. a memorandum of the transaction in the
public records (actis intervenientibus) being in both cases required.
Emancipation by imperial rescript had been previously instituted by
the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript
was required for effecting an arrogation.
In English law children are enfranchised, and the limited power
of the father over their person and property is terminated by
two events which did not operate emancipation in Eoman law,
marriage and arrival at years of discretion, that is, attainment of
majority by the completion of twenty-one years of age. At
these points, under English law, the empire of the father or other
guardian gives place to the empire of reason ; whereas neither
marriage nor majority released the Eoman son or daughter from
potestas.
§ 136. Cf. §§ 108-115 &, comm. Q. Aelius Tubero and Paulus
Fabius Maximus were consuls B.C. 11, the year in which the office
of flamen dialis was re-established. This cannot therefore be the
law A.D. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead's
Gaius).
§ 137. 1 1 j § 137. A woman subjected to
— mancipatione desinunt in hand by coemption is, like a
manu esse, et si ex ea mancipa- daughter, released therefrom by
tione manumissae fuerint sui one mancipation, and on sub-
iuris ef|fici^7iiur. sequent manumission becomes
independent.
xio-y^ -.,. i §137 a. Between a woman who
V *wf w« ' — . ---(j UcttJ f - ' , . . . • . .,
cogere coem^onatorem ha* entered 1!lto a coemPtlon ™&
potest, ut se remancipet, cui a stranger and a woman who has
4 ,,., ...,^ . entered into a coemption with a
lpsa uel|it nihilo magis husband there is this difference,
potest cogere quam et fi ha that the former has the power of
patrem. sed film quidem nullo compelling the coemptionator to
mpdo patrem potest cogere, remancipate her to any one she
etiamsi adoptiua sit ; haec au- pleases, whereas the latter cannot
tern {uirum} repudio misso compel him to do this any more
proinde conpellere potest, at- than a daughter can her father.
86
DE PERSONIS
[i. §§ 137-141.
que si ei numquam nupta
fuisset.
§ 138. li qui in causa man-
cipii sunt, quia seruorum loco
habentur, uindicta censu testa-
mento manumissi sui iuris
fiuut.
§ 1 39. Nee tamen in hoc casu
lex Aelia Sentia locum habet.
itaque nib.il requirimus, cuius
aetatis sit is qui manumittit et
qui manumittitur ; ac ne illud
quidem, an patronum credito-
remue manumissor babeat. ac
ne numerus quidem lege Fufia
Caninia finitus in his personis
locum babet.
§ 140. Quin etiam inuito
quoque eo cuius in mancipio
sunt censu libertatem consequi
possunt, excepto eo quern pater
ea lege mancipio dedit ut sibi
remancip&tur ; nam quodam-
modo tune pater potestatem
propriam reseruare sibi uidetur
eo ipso, quod mancipio recipit.
1 ac ne is quidem dicitur inuito
eo cuius in mancipio est censu
libertatem consequi, quern pater
ex noxali causa [mancipio de-
dit], ueluti quod furti eius no-
mine damnatus est, [et eum]
mancipio actori dedit ; nam
bunc actor pro pecunia habet.
A daughter, however, has no
means of compelling her father
to emancipate her even if she is
only such by adoption, whereas
a wife by sending a message of
divorce can compel her husband
to release her from his hand, just
as if they had never been married.
§ 138. As persons in mancipa-
tion are in the position of slaves,
manumission byfictitious vindica-
tion, by entry on the censor's
register, by testamentary disposi-
tion, are the modes by which
they acquire independence.
§ 139. But to them the lex
Aelia, Sentia has no application :
no age of the person manumitting
or the person manumitted is
required ; the manumission is
subject to no proviso against
fraud on the rights of patron or
creditors, nor even to the nu-
merical limitation of the lex
Fufia Caninia.
§ 140. But even though the
assent of the holder in mancipa-
tion is withheld, freedom may
be acquired by entry on the
register of the censor, except
when a son has been mancipated
by a father with a condition of
remancipation, then the father
is deemed to have reserved in a
way his own power in consequence
of the condition that he is to
have him back in mancipation ;
nor can liberty be acquired with-
out the assent of the holder in
mancipation by entry on the
censor's register when a delin-
quent son has been surrendered
by his father in consequence of
a noxal suit ; when, for instance,
the father has been condemned in
an action for a theft committed by
the son, and has by mancipation
surrendered his son to the plaintiff,
for in this case the plaintiff holds
him in lieu of pecuniary damages.
I. §§ 142-154.] DE TVTELIS 87
& 141. In summa admonendi § 141. Finally, it is to be
sumus aduersus eos quos in observed that contumelious treat-
mancipio habemus nihil nobis ment of a person held m mancipa-
contu^eliosefacerelieere: alio- fc
qum mmriarumtenebimu^ ac ™*< n ^
ne dm quidem in eo mre deti- igtent but m*rel formai and
nentur homines, sed plerumque momentary except when it is
hoc fit dicis gratia uno mo- the consequence Of surrender in
mento, nisi scilicet ex noxali lieu of Damages in an action of
causa mancipentur. trespass.
§ 137. Dissolution of marriage (divortium) could be effected either
by the consent of both parties or by the act of one. The message of
repudiation (repudium) contained the formula, Tuas res tibi habeto,
' Take away thy property.' Mimam illam suam suas res sibi habere
jussit claves ademit, exegit, Cic. Phil. 2, 28. ' The actress was ordered
to pack, deprived of the keys, turned out of the house,' The lex Julia
de adulteriis prescribed a form for repudium, and required the message
to be delivered by a freedman of the family, in the presence of
seven witnesses above the age of puberty and citizens of Rome.
The party who made a causeless repudium, or whose misconduct
justified a repudium, was punished by pecuniary losses in respect of
dos and propternuptial donations. After much veering legislation
under the Christian Emperors, Justinian enacted that a man or woman
who divorced without a cause should retire to a cloister and forfeit
all his or her estate, one moiety to his or her successors, and the other
moiety to the cloister. Nov. 1 34, 1 1. But it was not till later times
that the Church succeeded in making marriage indissoluble by law,
§ 140. Ihering, § 32, infers from this that the census, like a year
of jubilee, freed all but noxal and fictitious bondsmen at the end of
five years : and that the Twelve Tables, in limiting a father to three
mancipations, disabled him from selling the services of his son for
more than fifteen years. As to noxal surrender of filiifamilias see
4 §§ 75-81.
§ 141. Whereas no injuria could be done to a slave. 4 § 222.
DE TVTELTS.
& 142. Transeamus nunc ad § 142. Let us now proceed to
aliara diuisionem. nam ex his another classification: persons not
subiect to power, nor to hand,
personis quae neque in pote- ^ hdd £ mancipation) may
state neque m manu neque in gtm be subject either to tutelary
mancipio sunt quaedam uel in guardianship or to curatorship,
tutela sunt uel in curatione, Or may be exempt from both
quaedam neutro iure tenentur. forms of control. We will first
88
DE PERSONIS
[i. §§ 142-154.
uideanras igitur quae in tutela
quae in curatione sint ; ita enim
intellegemus ceteras personas
quae neutro iure tenentur.
Inst. l,13pr.
§ 143. Ac prius dispiciamus
de his quae in tutela sunt.
Inst. 1. c.
§ 144. Permissum est itaque
parentibus liberis quos in po-
testate sua habent testament
Stores dare : masculini quidem
sexus inpuberibus, (feminini
autem sexus cuiuscumque ae-
tatis sint, et turn (?uo)que,
cum nuptae sint. ueteres enim
uoluerunt feminas, etiamsi per-
fectae aetatis sint, propteranimi
leuitatem in tutela esse.
Inst. 1,13, 3.
§ 145, Itaque si quis filio
filiaeque testamento tutorem
dederit et ambo ad pubertatem
peruenerint, filius quidem desi-
nit habere tutorem, filia uero
nihilo minus in tutela perma-
net ; tantum enim ex lege lulia
et PapiaPoppaea iure liberorum
tutela liberanturfeminae. loqui-
mur autem exceptis uirginibus
Vestalibus quas etiam ueteres in
honorem sacerdotii liberas esse
uoluerunt, itaque etiam lege xn
tabularum cautum est.
Inst. 1. c.
§ 146. Nepotibus autem nep-
tibusque ita demum possumus
tesiamento tutores dare, si post
mortem nostram in patris sui
potestatem [iure] recasuri non
sint. itaque si filius meus
mortis meae tempore in pote-
state mea sit, nepotes ex eo non
poterunt ex testamento meo
habere tutorem, quamuis inpote-
state mea fuerint ; scilicet quia
mortuo me in patris sui pote-
state futuri sitnt. Inst. 1. c.
examine what persons are subject
to tutelary guardianship and
curatorship, and thus we shall
know who are exempt from both
kinds of control.
§ 143. And first of persons
subject to tutelary guardianship
or tutelage.
§ 144. The law allows a parent
to appoint guardians in his will
for the children in his power,
below the age of puberty, if they
are males ; whatever their age,
and notwithstanding their mar-
riage, if they are females ; for,
according to our ancestors, even
women who have attained their
majority, on account of their levity
of disposition, require to be kept
in tutelage.
§ 145. Accordingly, when a
brother and sister have a testa-
mentary guardian, on attaining
the age of puberty the brother
ceases to be a ward, but the sister
continues, for it is only under
the lex Julia and Papia Poppaea
by title of maternity that women
are emancipated from tutelage ;
except in the case of vestal
virgins, for these, even in our
ancestors' opinion, are entitled
on account of the dignity of their
sacerdotal function to be free from
control, and so the law of the
Twelve Tables enacted.
§ 146. A grandson or grand-
daughter can only receive a testa-
mentary guardian provided the
death of the testator does not
bring them under parental power.
Accordingly, if at the time of the
grandfather's death the father
was in the grandfather's power,
the grandchildren, though in the
grandfather's power, cannot have
a testamentary guardian, because
his death leaves them in the
power of the father.
I. §§ 142-154.]
DE TVTELIS
89
§ 147. Cum tamen in con-
pluribus aliis causis postumi
pro iam natis habeantur, et in
hac causa placuit non minus
postumis quam iam natis testa-
mento tutores dari posse, si
modo in ea causa sint, ut si
uiuis nobis nascantur, in pote-
state nostra fiant. hos (enim)
etiam heredes instituere possu-
mus, cum extraneos postumos
heredes instituere permissum
non sit. Inst. 1,13, 4.
§ 148. { Vocoriy quae in manu
est proinde ac filiae, item nurui
quae in filii manu est proinde
ac nepti tutor dari potest.
§ 149. Kectissime autem
tutor sic dari potest : L. TITIVM
LIBERIS MEIS TVTOBEM DO. Bed
et si ita ecriptum sit LIBERIS
MEIS uel VXOBI MEAE TITIVS
TVTOB ESTO, recte datus intelle-
gitur.
§ 150. In persona tamen
uxoris quae in manu est recepta
est etiam tutoris optio, id est
ut liceat ei perrnittere quern
uelit ipsa tutorem sibi optare,
hoc modo : TITIAE \XORI MEAE
TVTOEIS OPTIONEM DO. quo casu
licet uxori (tutorem optare) uel
in omnes res uel in unam forte
aut duas.
§ 151. Ceterum aut plena
optio datur aut angusta.
§ 152. Plena ita dari solet,
ut proximo supra diximus.
angusta ita dari solet— TITIAE
VXOBI MEAE TVTOEIS OPTIONEM
DVMTAXAT SEMEL DO, aut DVM-
TAXAT BIS DO.
§ 153. Quae optiones pluri-
mum inter se ditferunt. nam
quae plenam optionem habet
potest semel et bis et ter et
§ 1 47. As in many other matters
after-born children are treated on
the footing of children born before
the execution of the will, so it is
ruled that after-born children, as
well as children born before the
will was made, may have guar-
dians therein appointed, provided
that if born in the testator's life-
time they would be subject to
his power [and self-successors],
for such after-born children may
be instituted heirs, but not after-
born strangers.
§ 148. A wife in the testator's
hand may receive a testamentary
guardian as if she were a daughter,
and a son's wife in the son's hand
as if she were a granddaughter.
§ 149. The most regular form
of appointing a guardian is in
the following terms : ' I APPOINT
LUCIUS TlTIUS GUAKDIAN TO MY
CHILDREN'; the form, 'BE Lucius
TlTTUS GUARDIAN TO MY CHILDREN*
— or, 'TO MY WIFE ' — is also valid.
§ 150. To a wife in his hand a
testator is permitted to devise the
selection of her guardian, that is,
he may authorize her to choose
whom she pleases, in the follow-
ing terms : i To TITIA MY WIFE
I DEVISE THE SELECTION OF HER
GUARDIAN'; whereupon she may
nominate either a general guar-
dian or a guardian for certain
specified matters.
§ 151. The option of a guardian
may be limited or unlimited.
§ 152. Unlimited option is
usually devised in the form above
mentioned ; limited option in the
following terms: 'To TITIA MY
WIFE I DEVISE NOT MORE THAN
ONE OPTION ' — or, 'NOT MORE THAN
TWO OPTIONS — OF A GUARDIAN.'
§ 153. The effect of these forms
is very different : unlimited option
is a power of choosing a guardian
an indefinite number of times;
90 DE PERSONIS [i. §§ 142-154.
saepius tutorem optare ; quae limited option is the right of a
uero angustam habet optionem, single choice, or of two choices,
si dumtaxat semel data est as may happen,
optio, amplius quam semel op-
tare non potes£ ; si dumtaxat
bis, amplius quam bis optandi
facultatem non habei.
§ 154. Vocantur autem hi § 154. A guardian actually
qui nominatim testamento tu- nominated by the will of the
tores dantur datiui, qui ex testator is called a dative guardian;
optione sumuntur optiui. ™ *•*«? by selection (of the
widow) is called an optative
guardian.
Having examined those inferiorities of legal capacity which con-
stituted a status, we now proceed to examine certain cases of inca-
pacity of acting independently which, though analogous to the former
as belonging to the sphere of unequal rights, were not included by
the Romans under the denomination of status. The inferiorities of
capacity in infancy, minority, tutelary wardship, curatel, were
different in character and not so considerable as those which we
have hitherto examined. The diminution of rights in a lapse
from independence to curatel was less than the least capitis
minutio, and accordingly a prodigal who was interdicted from
the administration of his estate and subjected to the control of
a curator, was not said to undergo a status mutatio : his patrimony
still vested in him, though he was deprived of its administration ;
whereas adrogatio and in manum conventio divested a person of the
capacity of ownership and active obligation : inferior status, in a
word, is incapacity of right ; wardship and curatel are only incapa-
cities of disposition.
Guardianship is thus defined : Est autem tutela, ut Servius definit,
jus ac potestas in capite libero, ad tuendum eum qui propter aetatem
se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1.
' Guardianship is a right and power over an independent person
conferred or authorized by the Civil law for the protection of one
who is incapacitated by age for self-defence.' The duties of the
guardian related both to the person and to the property of the ward.
In respect of "his person, the guardian was charged with the care of
his nurture and education : in respect of his property, the guardian's
function was distinguished as either exclusive administration or
concurrent interposition of authority (rem gerere et auctoritatem
interponere). Up to the age of seven the ward was called infans, 3
§ 109, and during this period the guardian acted alone (administratio,
negotiorum gestio) ; after the completion of seven years until the age
of puberty (fourteen for males, as the time was ultimately fixed,
I. §§ 155-158.] DE LEGITIMA AGNATORVM TVTELA 91
twelve for females) the ward acted, and the guardian concurrently
gave his sanction (auctoritas). The sanction of the guardian was a
legal act of a highly formal character (actus legitimus), by which such
legal acts of his ward, as would otherwise have been imperfect, obtained
validity. Accordingly the guardian could not give his sanction by
letter or through an agent, but had to be present himself for the
purpose at the time when the act of the ward was executed, so that
he might be a subsidiary party to it. Ins.t. 1, 21, 2 Tutor autem
statim in ipso negotio praesens debet auctor fieri, si hoc pupillo
prodesse existimaverit. post tempus vero aut per epistulam inter-
posita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of
the ward was one which might possibly entail loss, but not otherwise.
Of. 2 §§ 80-85, Inst. 1. c. pr. and 1 Auctoritas autem tutoris in quibus-
dam causis necessaria pupillis est, in quibusdam non est necessaria.
ut ecce si quid dari sibi stipulentur, non est necessaria tutoris aucto-
ritas: quod si alias pupilli promittant, necessaria est: namque placuit
meliorem quidem suam condicionem licere eis facere etiam sine
tutoris auctoritate, deteriorem autem non aliter quam tutore auctore.
unde in his causis, ex quibus mutuae obligationes nascuntur, in
emptionibus venditionibus, ... si tutoris auctoritas non interveniat,
ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli
non obligantur In respect of administration of property the
guardian incurred a quasi-contractual obligation, and was accordingly
liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship
after the age of puberty : the functions of the guardian were in their
case confined to auctoritas, which in most cases was a mere formality ;
the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2
§ 130, comm.
§ 148. In filii manu must be regarded as an inaccurate expression :
for filiusfamilias was incapable of all civil rights, including manus,
and could only serve as a conduit-pipe by which the right of manus
vested in his father.
§ 154. In the Code and Digest of Justinian the term tutor dativus
is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5 ;
Dig. 46, 6, 7.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. Quibus testamento § 155. In default of a testa-
quidem tutor datus non sit, iis mentary guardian the statute of
, ,, 7 7 \ ,. the Twelve Tables assigns the
exlegexn<ta^amm>agnati guardianship to the nearest ag-
sunt tutores, qui uocantur legi- nates, who are hence called statu-
timi. Inst. 1, 15 pr. tory guardians.
DE PERSONIS
[i. §§ 155-158.
§ 156. Sunt autem agnati
per uirilis sexuspersonas cogna-
tione iuncti, quasi a patre
cognati, ueluti frater eodem
patre natus, fratris filius ne-
posue ex eo, item patruus et
patrui filius et nepos ex eo. at
hi qui per feminini sexus per-
sonas cognatione coniunguntur
non sunt agnati, sed alias
natural! iure cognati. itaque
inter auunculum et sororis
fiJiuin non agnatio est, sed
cognatio. item amitae, mater-
terae filius non est mini agnatus,
sed cognatus, et inuicein scilicet
ego illi eodem iure coniungor,
quia qui nascuntur patris, non
matris familiam secuntur.
Inst. 1,15,1.
§ 157. Et olim quidem,
quantum ad legern xii tabu-
larum attinet, etiam feminae
agnatos habebant tutores. sed
postea lex Claudia lata est
quae, quod ad feminas attinet,
(agnatorum} tutelas sustulit ;
itaque masculus quidem in-
pubes fratrem puberem aut
patruum habet tutorem, femina
uero talem habere tutorem non
potest.
§158. Sed agnationis quidem
ius capitis deminutione peri-
mitur, cognationis uero ius eo
modo non commutatur, quia
ciuilis ratio ciuilia quidem iura
corrumpere potest, naturalia
uero non potest. Inst. 1, 15, 3.
§ 156. Agnates (3 § 10) are
persons related through males,
that is, through their male ascen-
dents : as a brother by the same
father, such brother's son or son's
son ; a father's brother, his son
or son's son. Persons related
through female ascendents are
not agnates but simply cognates.
Thus, between an uncle and his
sister's son there is not agnation,
but cognation : so the son of my
aunt, whether she is my father's
sister, or my mother's sister,
is not my agnate, but my cog-
nate, and vice versa ; for chil-
dren are members of their father's
family, not of their mother's.
§ 157. In former times, the
statute of the Twelve Tables made
females as well as males wards of
their agnates : subsequently a law
of the EmperorClaudius abolished
this wardship in the case of fe-
males : accordingly, a male below
the age of puberty has his brother
above the age of puberty or his
paternal uncle for guardian, but
a female cannot have such a
guardian.
§ 158. Capitis deminutio extin-
guishes rights by agnation, while
it leaves unaffected rights by cog-
nation, because civil changes can
take away rights belonging to
civil law (jus civile), but not rights
belonging to natural law (jus
naturale).
§ 156. As to this definition of agnati see Moyle's note to Inst.
1, 15, 1. The maxim here enunciated is calculated to give a false
idea of the relation of the institutes of jus gentium to those of jus
civile. Title by cognation is just as much an institute of positive
law as title by agnation, though cognation, or blood-relationship, is in
itself a natural and permanent tie, while agnation is an artificial one,
and therefore only occasional. The synthesis of title and right in jus
I. §§ 159-164.] DE CAPITIS MINVTIONE 93
civile may be freakish and capricious, while that in jus gentium may
be reasonable and expedient ; but both are equally positive institu-
tions, and both are equally mutable and liable to be overruled.
Accordingly, the specious-sounding maxim, that revolutions in status
or civil condition cannot affect such rights as are annexed to natural
titles, crumbles away as soon as we examine it, for we find that it
only holds good of the most insignificant change, the minima
capitis minutio, 3 § 27, and that maxima and media capitis minutio
extinguish title by cognation, which belongs to jus gentium, as well as
title by agnation, which belongs to jus civile. Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural
law fall under two very different classes, which it is important to
distinguish.
1. If the command of the civil lawgiver, under the sway of
motives financial, political, ethical, or religious, is highly imperious
and absolutely compulsive, all natural titles with which it may
come in conflict are absolutely void and inoperative : e. g. the Sc.
Velleianum, prohibiting suretyship of women, allowed no naturalis
obligatio to be produced by any such suretyship : and so with the
laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and abso-
lute, it may deprive any conflicting natural title of plenary force,
and yet leave to it a naturalis obligatio capable of acquiring efficacy
by some machinery of positive law ; e. g. the Sc. Macedonianum,
prohibiting money loans to a filiusfamilias without the sanction of
his father, made them irrecoverable by action, and yet the courts
recognized in the borrowing filiusfamilias a naturalis obligatio, which
was capable of novation, Dig. 46, 2, 19, and a bar to recovery back
(condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and
made the right of succession depend on cognation instead of agnation,
he made a corresponding change in the obligation of guardianship,
which henceforth devolved on cognates instead of agnates, women
as formerly, with the exception of mothers and grandmothers, being
excluded from the office, Nov. 118, 5.
DE CAPITTS MINVTIONE.
§ 159. Est autem capitis § 159. Capitis deminutio is a
deminutio prioris status per- change of a former status which
mutatio. eaque tribus modis occurs in three ways, i. e. it is
accidit: nam aut maxima est either greatest, minor or mediate,
capitis deminutio, aut minor or least,
quam quidam mediam uocant,
aut minima. Inst. 1, 16pr.
94
DE PERSONIS
[i. §§ 159-164.
§ 160. Maxima est capitis
deminutio, cum aliquis simul
et ciuitatem et libertatem
amittit; quae accidit incensis,
qui ex forma censuali uenire
iubentur ; quod ius p 1
— • ex lege — | qui
contra earn legem in urbe Roma
do|micilium habuerint ; item
feminae quae ex senatuscon-
sulto Claudiano ancillae fitint
eorum dominorum quibus inui-
tis et denuntiantibus cum seruis
eorum coierint. Inst. 1, 16, 1.
§ 161. Minor siue media
est capitis deminutio, cum
ciuitas amittitur, libertas reti-
netur ; quod accidit ei cui aqua
et igni interdictum fuerit.
Inst. 1, 16, 2.
§ 162. Minima est capitis
deminutio, cum et ciuitas et
libertas retinetur, sed status
hominis commutatur ; quod ac-
cidit in his qui adoptantur,
item in his quae coemptionem
faciunt, et in his qui mancipio
dantur quique ex mancipatione
manumittuntur ; adeo quidem,
ut quotiens quisque mancipe-
tur aut manumittatur, totiens
capite deminuatur.
Inst. 1,16, 3.
§ 163. Nee solum maiori&ws
(capitisy deminutionibus ius
agnationis corrumpitur, sed
etiam minima ; et ideo si ex
duobus liberis alterum pater
emancipauerit, post obitum
eius neuter alter! agnationis
iure tutor esse poterit.
§ 164. Cum autem ad agna-
tos tutela pertineat, non simul
ad omnes pertinet, sed ad eos
tantum qui proximo gradu sunt.
§ 160. The greatest capitis de-
minutio is the simultaneous loss
of citizenship and freedom, which
happens to those who having
evaded inscription on the censo-
rial register are sold into slavery
according to the regulations of
the census, also under the
law when persons in violation of
it make Rome their place of resi-
dence, and also under the Sc.
Claudianum in case of persistent
intercourse on the part of a free
woman with another person's
slave in spite of the dissent and
denunciation of the owner.
§ 161. Minor or intermediate
loss of status is loss of citizenship
unaccompanied by loss of liberty,
and is incident to interdiction of
fire and water.
§ 162. There is the least capi-
tis deminutio retaining citizenship
andfreedom when a man's position
in the family only is changed,
which occurs in adoption, coemp-
tion, and in the case of those
given in mancipium to be after-
wards manumitted, so that after
each successive mancipation and
manumission a capitis deminutio
takes place. •
§ 163. Not only by the two
greater losses of status are rights
of agnation extinguished, but also
by the least : accordingly, if one
of two children is emancipated,
the elder cannot on the father's de-
cease be guardian to the younger
by right of agnation.
§ 164. When agnates are en-
titled to be guardians, it is not
all who are so entitled, but only
those of the nearest degree.
I. §§ 159-164.] DE CAPITIS MINVTIONE 95
§ 160. Ulpian also refers to the penalty incurred by incensi
(11, 11 cum inceiisus aliquis venierit ; cf. Cic. Pro Caec. 34, 99).
The lex, the name of which is now illegible, may possibly be the
lex Aelia Sentia, which by one of its provisions recalled into slavery
dediticii, who resided in Rome or within a certain distance from it
(§ 27), though there is the difficulty that it would be inaccurate to
speak of such freedmen suffering loss of citizenship as well as
liberty. Other grounds of reducing to slavery existed at various
times, as surrender by the pater patratus to a foreign state for an
offence against international law, Livy, 5, 36, or evasion of military
service (populus quum eum vendidit qui miles factus non est, Cic.
Pro Caec. 34, 11 ; Ulp. 11, 11), or capture by the enemy, § 129, or
condemnation for a capital crime, which made the convict a slave
of punishment (servus poenae, Inst. 1, 16, 1), i.e. reduced him to
penal servitude, or condemnation of a freedman for ingratitude
towards his patron (libertiis ingratus circa patromim condemnatus,
ibid.) whereupon he forfeited his freedom, or collusion of a freeman
in consenting to be sold as a slave on condition of sharing the
purchase-money (cum liber homo, major viginti annis, ad pretium
participandum sese venundari passus est, Inst. 1, 3, 4). After the
price had been paid, the vendor disappeared, the supposed slave
recovered his liberty by a liberalis causa, and the purchaser was left
without his slave and without his money. The praetor, to check
this fraud, allowed the purchaser to defend himself by exceptio doli,
and senatusconsulta subsequently enacted, that if the person sold
was twenty years old at the time of the sale or partition of the
price, he should really become the slave of the purchaser, Dig.
40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition
of libertinus to that of servus ; any of the other instances might be
a case of a fall from ingenuus to servus ; the fall from ingenuus to
libertinus would also be an analogous kind of degradation. Thus by
the Sc. Claudianum a freewoman (ingenua) who had commerce with
a slave with the consent of his proprietor procreated slaves without
forfeiting her own freedom, § 84 ; she lost status, however, for she
became the freedwoman of the proprietor, Paulus, 4, 10, 2 • Tac.
Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes,
civis, latinus, peregrinus, so there are three possible degradations,
the fall from civis to Latinus, instanced in the emigrant to a Latin
colony, § 131 ; the fall from civis to peregrinus, instanced in the
interdiction or deportation of a civis ; and the fall from Latinus to
peregrinus, instanced when the same events happened to Latinus.
A lapse from liber to servus was a dissolution of marriage, for
96 DE PERSONIS [i. §§ 159-164.
servus was incapable of matrimony : a lapse from civis to Latinus
or peregrinus was a dissolution of civil wedlock (connubium), for
this could only subsist between cives ; but if both parties consented,
they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1.
The confiscation of property or universal succession of the fiscus,
which accompanied greatest and minor loss of status, was not an
incident of the latter kind of capitis minutio (e. g. it did not happen
when civis became Latinus by emigration ; and an alien, as
a citizen became by deportation, was capable of holding property),
but was a special provision of the criminal code. (For an account
of the different Roman forms of banishment see Mommsen, Rom.
Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were
forfeited by infamy (infamia) or loss of civic honour (existi-
matio) ; and hence arises the question whether infamia is to
be regarded as a capitis minutio (see, on this subject, Greenidge,
Infamia).
Austin, in laying the bases of jurisprudence, has referred to the
law of honour to illustrate the difference of positive law from all law
not positive ; but in Kome the law of honour, as the law of reli-
gion in most modern states, was partially taken up into positive
legislation. The public sentiments of esteem and disesteem, that is
to say, were armed with political sanctions, and thus certain pro-
ceedings were discouraged which were not otherwise prohibited by
positive law, and the due application of these sanctions was the
function of a special organ appointed by the legislator. This
organ was the censor, who had both a discretionary power of
branding a man with ignominy by an annotation against his
name in the civic register (notatio, subscriptio censoria), and, as
revisor of the lists of the senate, the knights, and the tribes,
enforced the disabilities of infamy by removing the infamous
person from any of those bodies. As the Comitia Centuriata,
as well as the Comitia Tributa, had in later times been con-
nected with the division into tribes, the tribeless man (aerarius)
forfeited his vote and became incapable of military service, Livy,
7, 2. These graver consequences of infamy were not in the dis-
cretion of the censor, but governed by strict rules of consue-
tudinary law (jus moribus introductum). The law of infamia,
as established by the censor, came to be also recognized by the
praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut
infancies notantur), who made infamy not only a consequence
of condemnation in any criminal trial (publicum judicium), but
also of condemnation in certain civil actions founded on delict,
such as theft, rapine, outrage, fraud ; or on certain contracts, such
I. §§ 159-164.] DE CAPITIS MINVTIONE 97
as partnership, agency (mandatum), deposit ; or on quasi contract,
such as guardianship ; or of insolvency (bona possessa, proscripta,
vendita) ; or, without any judicial condemnation, was annexed to
certain violations of the marriage laws, such as bigamy or the
marriage of a widow before the termination of her year of mourning,
and to the pursuit of certain professions, such as that of stage-
player or gladiator. In some of these latter instances consuetu-
dinary law, as above intimated, inflicted positive sanctions on acts
that originally had only been prohibited by the law of honour.
In view of these consequences, infamia may at one time have been
regarded as capitis minutio. Cicero pro Quinctio speaks of a
suit involving existimatio as a causa capitis (cf. pro Kosc. Com. 6),
and Tertullian, the father of the Church, who was noted for his
knowledge of Roman law, and possibly was identical with the jurist
of that name, of whom five fragments are preserved in the Digest,
speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos
manifesto damnant ignominia et capitis deminutio. But the poli-
tical rights of civitas had ceased to be of importance under the
emperors, and we are expressly told in the Digest that only death
or loss of citizenship can be understood to affect a man's caput,
Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas,
infamia affected to a certain extent its private elements, both
commercium and connubium ; the former, as we shall see, in respect
of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and
the latter in respect of the disabilities of celibacy under the lex
Julia, which were not removed by marriage with an infamis. Both
these classes of disability had practically vanished even before they
were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of con-
dition, analogous to the old distinctions of status, which grew up
subsequently to the time of Gaius in the later ages of Kome, and
some of which survived the fall of the Boman empire. From the
establishment of the empire the army was caressed by each suc-
ceeding despot, and privileges of various kinds were so accumulated
on the military service, that the relation of the soldiery to the rest
of the world very much resembled the ancient relation of Bomanus
to peregrinus. The pre-eminence of the military caste was the result
of elevation ; other unprivileged castes were created by depression.
As the new religion grew to political power, zealous legislators were
eager to promote its ascendency by the means of political sanctions.
Pagans, Jews, heretics, apostates, protestants, papists, were suc-
cessively frowned upon by the legislator, and for a long season
subjected to incapacities and disabilities as great as, or greater than,
98 DE PERSONIS [i. §§ 159-164.
those which weighed upon infames : until by a change in political
conceptions these inequalities of right have been again levelled and
almost obliterated in most of the codes of modern Europe. See also
the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes,
(i) sui juris, or paterfamilias and materfamilias ; (2) filiusfamilias
and filiafamilias ; and (3) mancipium : but there are only two possible
degradations, (i) from sui juris to alieni juris, which occurs in
adrogation and the in manum conventio of a woman previously
independent ; and (2) from films- or filiafamilias to mancipium,
which occurs in noxal surrender, in emancipation, in adoption
as implying mancipation, and in the remancipation of a woman by
her husband or the person who held her in manu in virtue of a
fiduciary coemption. The descent from sui juris to mancipium
cannot occur, because the only persons capable of passing into the
condition of mancipium by the process of mancipation were filius-
and filiafamilias and women in manu, i. e. persons already alieni
juris.
In the exposition of capitis minutio, and particularly of the third
and last kind, I have adopted the theory of Savigny as being the
most tenable, and forming the most harmonious system of legal
conceptions. I must now briefly notice an opposing theory, and
the objections that may be raised against that of Savigny. Some
expositors hold that capitis minutio minima did not necessarily and
essentially involve any degradation, any downward step on the
ladder of status, but might be merely a horizontal movement on the
same platform, a transit from family to family, a disruption of
the ties of agnation, a cessation of membership in a given civil
group. (See on this subject Dr. Moyle's Excursus, Inst. Bk. 1, and
Professor Goudy's App. to Muirhead's Roman Law, second ed., p. 426,
where Mommsen's explanation is given.) This opinion is founded
on the authority of Paulus, undeniably an eminent juris auctor,
who defines the least diminution of head as follows : Dig. 4, 5, 11.
' Capital diminution is of three orders, greatest, minor, least ; as
there are three things that we have, liberty, citizenship, family.
The universal loss of freedom, citizenship, family, is the greatest
capital diminution ; loss of citizenship while liberty is retained is
minor capital diminution ; when liberty and citizenship are retained,
and family only is changed, there is the least capital diminution.'
Consistently with this definition Paulus affirms that the children
of adrogatus suffer capitis minutio minima : Dig. 4, 5, 3 pr. ' The
children who follow an adrogated parent suffer capital diminution,
as they are dependent and have changed family ' : here, then, if
Paulus is right, we have capitis minutio without any degradation,
I. §§ 159-164.] DE CAPITIS MINVTIONE 99
any loss of .rank ; for the children of adrogatus have the same
status of filiifamilias after their father's adrogation as they had
before, although in a different family. The proposition, however,
that the children of adrogatus suffer capitis minutio is not confirmed
by any other jurist, and Savigny supposes that the doctrine was
peculiar to Paulus, and was in fact inaccurate. Another objection
to the theory of Savigny, though not so serious as the opposing
authority of Paulus, is presented by the operation of in manum
conventio.
When an independent woman made a coemption she undoubtedly
declined in status, as before coemption she was sui juris, and after
coemption she is filiafamilias. But a filiafamilias who made a
coemption apparently suffered no degradation: the definitive result
of the coemption leaves her, as before, filiafamilias, and that,
apparently, without having passed through any lower stage ; for
Gaius expressly says that the lex mancipii, or formula of mancipa-
tion in coemption, was not calculated to reduce the woman to a
servile condition, § 123. Gaius tells us, however, that coemption
operates a capitis minutio, § 162, without limiting the effect to the
case of a woman sui juris. The operation of coemption to produce
capitis minutio is also mentioned by Ulpian, and again without any
express limitation to the case of an independent woman: 11, 13.
' There is least capital diminution when both citizenship and freedom
are unimpaired, and only position in household life is changed, as
occurs in adoption and subjection to hand.' If filiafamilias under-
went capitis minutio when she made a coemption, her case dis-
proves our theory that all capitis minutio requires degradation : but
Savigny assumes that, though in these passages there is no express
limitation to the case of independent women, yet this limitation
must be understood ; and there is nothing outrageous in this
supposition.
While, however, these objections to the hypothesis of Savigny
are doubtless serious, on the other hand they are compensated by
legal facts which seem absolutely irreconcilable with the adverse
hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gel-
lius, 1, 12. 'As soon as a vestal virgin is selected and conducted
to the shrine of Vesta and delivered to the pontifices, she instanta-
neously, without emancipation and without capital diminution,
is freed from parental power and acquires testamentary capacity.
.... Moreover, in the commentary of Labeo on the Twelve Tables
it is stated that a vestal virgin is neither heiress-at-law to any one
who dies intestate nor, if she herself die intestate, leaves any heir-
at-law, and that in this event her property lapses to the state.'
For Flamen Dialis, see 3 § 114. If mere transit from a family
H 2,
100 DE PERSONIS [i. §§ 159-164.
and ceasing to belong to a given group of agnates constituted
capitis minutio, and was its definition, then the vestal virgin must
inevitably have suffered capitis minutio ; the fact that she did not,
in spite of leaving her family and snapping the agnatic tie, is at
once conceivable, on the supposition that there is no capitis minutio
without degradation.
Unless capitis minutio minima involved a downward step on the
stair of status, it has no analogy to the other forms of capitis
minutio, and it is not obvious why it should have the same generic
appellation, or why it should be handled in the same department of
the code. The rupture of the ties of agnation, extinguishing rights
of intestate succession, might be a loss, but it was not a loss from
inferiority of privilege ; it was a loss of an equal among equals ; it
was more like the loss of dos which a husband might incur by
divorce of his wife, or an heir by neglecting to accept a succession
within the appointed period (cretio), 2 § 164 ; neither of which persons
were said to undergo capitis minutio, because neither of them
suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the
definition given by Paulus and his statement respecting the children
of adrogatus as inexact. f*aulus himself, in speaking of emancipa-
tion, implies the true conditions of capitis minutio : Dig. 4, 5, 3
Emancipate filio et ceteris personis capitis minutio manifesto accidit,
cum emancipari nemo possit nisi in imaginariam servilern causam
deductus ; aliter atque cum servus manumittitur, quia servile caput
nullum jus habet ideoque nee minui potest.
Although rupture of the ties, and forfeiture of the rights, or
release from the duties, of agnation, were not the essence of capitis
minutio minima, yet they were among its principal consequences.
The capite minutus lost his claim as suus heres at civil law, that is,
his right to succeed to an intestate ascendent, or to be instituted
heir in his will or formally disinherited. These effects of capitis
minutio were, however, counteracted to some extent by jus prae-
torium or the legislation of the praetor (bonorum possessio unde
liberi : and contra tabulas). He also lost his right as legitimus
heres at civil law, that is, his right to succeed as nearest agnate to
an intestate collateral ; and here the praetor only so far interposed
to assist the capite minutus, as, in default of all persons entitled
as nearest agnates, to call him to the succession in the inferior order
of cognates (bonorum possessio unde cognati). The collateral civil
heir was called legitimus heres (statutory heir) because his title was
founded on the statutes of the Twelve Tables, which, in default of
self-successors, called the nearest collateral agnates to the succession.
Subsequent statutes created certain quasi agnates or persons entitled
I. §§ 164 a-172.] DE LEGITIMA PATRONOKVM TVTELA 101
to succeed in the same order as if they were agnates, who hence
were also called legitimi heredes ; e. g. children entitled to succeed to
an intestate mother under the Sc. Orphitianum, and mothers entitled
to succeed to intestate children under the Sc. Tertullianum. The
effect of capitis minutio in extinguishing title to succeed was confined
to legitimus heres created by the Twelve Tables, and did not extend
to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically
from its consisting in a degradation or fall in status, and from its
involving elimination from a given family or a certain circle of
agnates, it had certain other abnormal or arbitrary consequences —
consequences, that is, which may have once been explicable on
known maxims of the civil law, but which are now inexplicable,
whose rationale had perhaps been lost even in the classical period,
and is certainly now past conjecture. Such is the rule, that capitis
minutio minima of an independent person extinguished the debts of
capite minutus. It is true that the injustice operated by this rule
of civil law in the case of adrogatio was counteracted by the inter-
position of the praetor, but, as at civil law filiusfamilias, though
incapable of rights, was capable of obligations, it is not obvious why
even at civil law a man's debts should have been cancelled by his
degradation from the status of paterfamilias to that of filiusfamilias.
3 § 84, comm. ; 4 § 38.
DE LEGITIMA PATRONORVM TVTELA.
§ 164 «.
(4 uersus in C legi nequeunt)
1 urbe I
(2 uersus in C legi nequeunt)
1 — in urbe Roma
itaque ut seru est
1 sunt 1
(2 uersus in C legi nequeunt)
— ease — I — simile 1
§ 165. Ex eadem lege xn
tabularum liber£arum et in-
puberum libertforum tutela ad
patronos liberosque eorum per-
tinet. quae et ipsa tutela legi-
tima uocatur, ncm quid nomi-
natim ea lege de hac tutela
c&uetur, sed quia proinde ac-
cepta est per interpretationem,
a£que si uerbis legis introducta,
§ 165. The same statute of the
Twelve Tables assigns the guar-
dianship of freedwomen and of
freedmen below the age of puberty
to the patron and the patron's
children, and this guardianship,
like that of agnates, is called statu-
tory guardianship, not that it is
anywhere expressly enacted in the
Twelve Tables, but because the
102
DE PERSONIS
[i. §§164a-172.
esset. eo enim ipso, quod here-
ditates libertorum libertarum-
que, si infestati decessissent,
iusserat lex ad patronos libe-
rosue eorum pertinere, credi-
derunt ueteres uoluisse legem
etiam tutelas ad eos pertinere,
quia et agnatos, quos ad here-
ditatem uocauit, eosdem et tu-
tores esse iusserat.
Inst. 1, 17 pr.
§ 166. Exemplo patronorum
Tecepk&e (sunt et aliae tutelae,
quae et ipsae legitimae uo-
cantur. nam si quis folium
nepotemue ex filio et deinceps
inpuberes, autfiliam neptemue
ex filio et deinceps tarn puberes
quam inpuberes alteri ea lege
mancipio dederit, ut sibi re-
manciparentur, remancipatos-
que manumiserit, legit imus
eorum tutor erit.y
Inst. 1,18.
§ 1 66 a. [DE FIDYCIABIA TV-
TELA."] Sunt et aliae tutelae,
quae fiduciariae uocantur, id
est quae ideo nobis conpetunt,
quia liberum caput mancipatum
nobis uel a parente uel a co-
emptionatore manumiserimus.
Inst. 1, 19.
§ 167. Sed Latinarum et
Latinorum inpuberum tutela,
non omni modo ad manumis-
sores eorum pertinet, sed ad eos
quorum ante manumissionem
(ex iure Quiritium fuerunt ;
unde si ancilla} ex iure Quiri-
tium tua sit, in bonis mea, a
me quidem solo, non etiam a te
manumissa, Latina fieri potest,
et bona eius ad me pertinent,
sed eius tutela, tibi conpetit;
interpretation has procured for it
as much reception as it would
have obtained from express enact-
ment ; for the fact that the statute
gave the succession of a freedman
or freedwoman, when they die
intestate, to the patron and pa-
tron's children, was deemed by
the lawyers of the republic (ve-
teres) a proof that it intended to
give them the guardianship also,
because the Tables, when they call
agnates to succeed to the inheri-
tance, likewise confer on them
the guardianship.
§ 166. The analogy of the pa-
tron guardian led in its turn to
the establishment of other guar-
dianships also called statutory.
Thus when a person mancipates
to another, on condition of re-
mancipation to himself, either a
son or grandson through a son,
who are below the age of puberty,
or a daughter or granddaughter
through a son of whatever age
they may be, he becomes their
statutory guardian when he manu-
mits them after remancipation.
§ 166 a. CONCERNING FIDUCIARY
GUARDIANSHIP.
But there are other kinds of
guardianship, called fiduciary,
which arise when a free person
has been mancipated by his
parent or coemptionator to an
alienee and manumitted by the
latter.
§ 167. The guardianship of
Latins, male or female, below the
age of puberty, does not neces-
sarily belong to their manumitter,
but on whoever before manumis-
sion was their quiritary owner.
Accordingly, a female slave be-
longing to you as quiritary owner,
to me as bonitary owner, if manu-
mitted by me without your join-
ing in the manumission, becomes
a Latin, and her property be-
longs to me, but her guardianship
i. §§ 1640-172.] DE CESSICIA TVTELA
103
nam ita lege lunia cauetur;
itaque si ab eo, cuius et in
bonis et ex iure Quiritium
ancilla fuerit, facta sit Latina,
ad eundem et bona et tutela
pertinent.
to you, by the enactment of the
lex Junia. If the slave is made
a Latin by one who combines the
character of bonitary and quiri-
tary owner, both her effects, and
the guardianship of her, belong to
one and the same person.
DE CESSICIA TVTELA.
§ 168. Agnatis et patronis
et liberorum capitum manu-
missoribus permissum es^ femi-
narum tutelam alii in jure
cedere ; pupillorum autem tute-
lam non est permissum cedere,
quia non uidetur onerosa, cum
tempore pubertatis finiatur.
§ 169. Is autem, cui ceditur
tutela, cessicius tutor uocatur.
§ 170. Quo mortuo aut capite
deminuto reuertitur ad eum
tutorem tutela qui cessit ; ipse
quoque qui cessit si mortuus
aut capite deminutus sit, a ces-
sicio tutela discedit et reuerti-
tur ad eum, qui post eum qui
cesserat secundum gradum in
ea tutela habueritf.
§ 171. Sed quantum ad agna-
tos pertinet, nihil hoc tempore
de cessicia tutela quaeritur, cum
agnatorum tutulae in feminis
lege Claudia sublatae sint.
§ 172. Sed fiduciaries quo-
que quidam putauerunt ceden-
dae tutelae ius non habere, cum
ipsi se oneri subiecerint. quod
etsi placeat, in parente tamen,
qui filiam neptemue aut pro-
neptem alteri ea lege mancipio
dedit, ut sibi remanciparetur,
remancipatamque manumisit,
§ 168. Statutory guardians,
whether agnates or patrons, and
manumitters of free persons, are
permitted to transfer the guard-
ianship of a female ward by
surrender before a magistrate ;
the guardianship of a male ward
is not allowed to be transferred,
because it is not considered
onerous, being terminated by the
ward's attaining the age of pu-
berty.
§ 169. The surrenderee of a
guardianship is called a cessionary
guardian.
§ 170. On his death or loss of
status the guardianship reverts to
the surrenderor, and on the sur-
renderor's death or loss of status
it is devested from the cessionary
and reverts to the person entitled
after the surrenderor.
§ 171. As far, however, as ag-
nates are concerned, in the pre-
sent day there is no such thing
as cessionary guardianship, for
agnatic guardianship over female
wards was abolished by the lex
Claudia.
§ 172. Fiduciary guardians, ac-
cording to some, are also disabled
from transferring their guardian-
ship, having voluntarily under-
taken the burden ; but although
this is the better opinion, yet a
parent who has mancipated a
daughter, granddaughter, or great-
granddaughter, with a condition
104 DE PERSONIS f[. && 173-184.
1_ i J
idem dici non debet, cum is et of remancipation to himself, and
legitimus tutor habeatur, et manumitted her after reman-
non minus huic quam patronis cipation, should be excepted from
honor praestandus sit. tne rule> for he is ranked with
statutory guardians, and has the
same privilege as the patron
of a manumitted slave.
§ 164 a. As in default of agnates the inheritance by the law of the
Twelve Tables devolved on the gens it may be inferred .by the
reasoning adopted in § 165 that the guardianship passed to it also.
So it is probable that at the beginning of the lacuna Gaius made
mention of the statutory guardianship of the Gentiles, and that this
is the passage on the subject referred to in 3, 17. As to the nature
of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non*civis, should
have been a subject of wardship : for as tutela is an institute of jus
civile (§§ 142, comm*, 189), i.e. jus civium, we should have expected
that, as in the case of patria potestas, both pater and filius must be
cives Romani, § 128, so here both parties, the ward as well as the
guardian, must of necessity be cives RomanL The anomaly, how-
ever, was expressly enacted by the lex Junia : which further departed
from the law of the Twelve Tables by separating the guardianship
from the right of succession ; for it gave the guardianship to the
person who before the manumission had been quiritary owner, but
the right of succession to the person who had previously been
bonitary owner. Latinus was not only capable of being a ward,
but also of being a guardian, Fragmenta Vaticana, 193; that is,
though he was incapable of being a testamentary guardian, § 23,
he could, it would seem, be made a tutor dativus, that is, appointed
by a magistrate, § 185.
§ 168. In later Eoman law, when the interest of the ward and not
that of the agnates was principally regarded, . guardianship became
inalienable. Similarly in English jurisprudence guardianship is
said not to be capable of assignment or transfer, because it is not
a right but a duty.
DE PETENDO ALIO TVTORE.
§ 173. Praeterea senatus- § 173. Moreover, a decree of
consulto mulieribus permissum the senate permits female wards
est in absentia tutoris locum to demand a substitute in the
alium petere ; quo petito prior Place of an absent guardian, who
desinit; nee interest quam longe is thus superseded: and the dis-
absit is tutor tance of his residence from her
domicil [provided it amounts to
absence] is immaterial.
I. §§ 173-184] DE PETENDO ALIO TVTORE
105
§ 174. Sed excipitur, ne in
absentis patroni locum liceat
libertae tutorem petere.
§ 175. Patroni autem loco
habemus etiam parentem, qui
ex eo, quod ipse sibi .rewan-
cipatara filiam neptemue aut
proneptera manumiait, legiti-
mam tutelam nactus est. (serf)
huius quidem liberi fiduciarii
tutoris loco numerantur; pa-
troni autem liberi eawdem
tutelam adipiscuntur, quam et
pater eorum habuit.
§ 176. Sed aliquando etiam
in patroni absentis locum per-
mittitur tutorem petere, ueluti
ad hereditatem adeundam.
& 177. Idem senatus censuit
•
et in persona pupilli patroni
filii.
§ 178. Nam e£ lege lulia de
maritandis ordinibus ei, quae
in legitima tutela pupilli sit$
permittitur dotis constituendae
gratia a praetore urbano tuto-
rem petere.
§ 179. Sane patroni filius
etiamsi inpubes sit, libertae
efficietur tutor, quamquam in
nulla re auctor fieri potest,
cum ipsi nibil permissum sit
sine tutoris auctoritate agere.
§ 180. Item si qua in tutela
legitima furiosi aut muti sit,
permittitur ei senatusconsulto
dotis constituendae gratia tuto-
rem petere.
§ 181. Quibus casibus sal-
uam manere tutelam patrono
patronique filio manifestum est.
§ 174. But an exception is
made in favour of an absent
patron, who cannot be superseded
on the application of a freed-
woman.
§ 175. Eanked with patrons is
the parent who by mancipation,
remancipation, and manumission
of a daughter, granddaughter, or
great-granddaughter, has become
her statutory guardian. His sons
only rank as fiduciary guardians,
unlike a patron's sons, who suc-
ceed to the same form of guardian-
ship as vested in their father.
§ 1 76. For a special and limited
purpose the senate permits even
the place of a patron in his ab-
sence to be filled by a substitute ;
for instance, to authorize the
acceptance of an inheritance.
§ 177. The senatusconsult gives
similar permission when a pa-
tron's son is himself a ward.
§ 178. For likewise the lex
Julia, regulating the marriages of
the various orders, permitted a
woman whose statutory guardian
was himself a ward to apply to
the praetor of the city to appoint
a guardian for the purpose of
constituting her dower.
§ 1 79. For a patron's son even
before the age of puberty is a
freedwoman's guardian, although
unable to authorize any proceed-
ing, being himself disabled from
acting without his guardian's
authorization.
§ 180. Also a woman whose
statutory guardian is a lunatic or
dumb is permitted by the senatus-
consult, for the purpose of settling
her dower, to apply for a substitu-
tive guardian.
§ 181. In which cases the con-
tinued guardianship of the patron
or patron's son is undisputed.
106
DE PERSONIS
[i. §§ 173-184.
X
§ 182. Praeterea senatus
censuit, ut si tutor pupilli
pupillaeue suspectus a tutela
remotus sit, siue ex iusta causa
fuerit excusatus, in locum eius
alius tutor detur, quo facto
prior tutor amittit tutelam.
§ 183. Haec omnia similiter
et Romae et in prouinciis ob-
seruantur, scilicet (ut Romae
a praetorey et in prouinciis a
praeside prouinciae tutor peti
debeat.
§ 184. Olim cum legis ac-
tiones in usu erant, etiam ex
ilia causa tutor dabatur, si
inter tutorem et mulierem pu-
pillunme lege agendum erat ;
nam quia ipse tutor in re sua
auctor esse non poterat, alius
dabatur, quo auctore legis
actio perageretur ; qui dice-
batur praetorius tutor, quia a
praetore urbano da&atur. sed
post sublatas legis actiones
quidam putant bane speciem
dandi tutoris in usu esse de-
siisse, aliis autem placet adtmq
in usu esse, si legitimo iudicio
a^atur.
Ulp. 11, 24; Inst. 1,21,3.
§ 182. The senate further de-
creed that if the guardian of a
male or female ward is suspected
of misconduct and removed from
office, or if he alleges valid grounds
for declining to act and is relieved
of his functions, a substitute shall
be appointed by the magistrate,
and on his appointment the office
of the former guardian shall deter-
mine,
§ 183. These rules are in force
both in Rome and in the pro-
vinces, but in Rome application
foj* the appointment of a tutor
must be made to the praetor ; in
the provinces, to the governor of
the province.
§ 184. During the era of litiga-
tion by statute-process [4 § 10],
another cause of appointing a
substitute was the imminence of
statute-process between the guar-
dian and the woman or ward ;
for as the guardian could not give
his authority in respect of his own
suit, another guardian was ap-
pointed to authorize the proceed-
ings in the action, who was called
a praetorian guardian, because he
was appointed by the praetor of
the city. But some hold that
since the abolition of statute-pro-
cess this mode of appointing a
guardian ceased to be used, others
maintain that it is still the prac-
tice on the occasion of a statutory
suit (4 § 103).
name ajid date of this senatus-
§ 173. Of. Ulp. 11, 22. The
consultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or com-
mentary on this important law relating to marriage.
§ 1 79. The law was changed by Justinian, who enacted that no
one could become guardian who had not attained his majority,
i.e. completed twenty-five years of age, Inst. 1, 25, 13 ; Cod. 5, 30, 5.
The fact of not having attained this age had previously been ground
of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the
removal of the guardian from his office could be maintained by any
i.§§185-188.] DE ATILIANOTVTOREETIVLIOTITIANO 107
person in the interest of the ward. If removed on account of
fraud the guardian was infamis, but not so if it was simply for
negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful
whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius
refers to one or several senatusconsults. From Dig. 26, 1, 17, how-
ever, it appears that, complura senatusconsulta facta sunt ut in
locum furiosi et muti et surdi tutoris alii tutores dentur: i.e. the
subject often occupied the attention of the senate. The reason was
that the lex Atilia, presently mentioned, had received, after the
wont of the ancient jurists, a strictly literal interpretation, and was
not deemed to authorize the substitution of a guardian when the
existing guardian was incapacitated.
DE ATILIANO TVTOEE, ET EO QYI EX LEGE IVUA ET TITIA DATVR.
§ 185. Si cui nullus omnino
tutor sit, ei datur in urbe
Roma ex lege Atilia a prae-
tore urbano et inaiore parte
tribunorum plebis, qui Atilia-
mis tutor uocatur ; in pro-
uinciis uero a praesidibus pro-
uinciarum (ex} lege lulia et
Titia. Inst. 1, 20 pr.
§ 186. Et ideo si cui testa-
mento tutor sub condicione aut
ex die certo datus sit, quamdiu
condicio aut dies pendet, tutor
dari potest ; item si pure datus
fuerit, quamdiu nemo heres
existat, tamdiu ex his legibus
tutor petendus est ; qui desini£
tutor esse, posteaquam aliquis
ex testamento tutor esse coe-
perit. Inst. 1, 20, 1.
§ 187. Ab hostibus quoque
tutore capto ex his legibus
tutor peti debet; qui desinit
tutor esse, si is qui captus est
in ciuitatem reuersus fuerit :
§ 185. Failing every other form
of g^rdian, at Rome a guardian
is appointed under the lex Atilia
by the praetor of the city and the
major part of the tribunes of the
people, called an Atilian guardian:
in the provinces, a guardian is
appointed by the president of the
province under the lex Julia and
Titia.
§ 186. Accordingly, on the ap-
pointment of a testamentary guar-
dian subject to a condition, or on
an appointment which is not to
commence till after a certain time,
during the pendency of the con-
dition and before the time has
come, a substitute is appointed
by these magistrates ; also, when
the appointment of a testamentary
guardian is not subject to a con-
dition, so long as no heir has
entered under the will, a tempo-
rary guardian may be obtained
under those statutes, whose office
will determine as soon as the
guardian becomes entitled under
the will.
§ 1 87. On the hostile capture of
a guardian the same statutes regu-
late the appointment of a substi-
tute to continue in office until the
return of the captive ; for if the
108
DE PERSONIS
[i. §§ 189-193.
nam reuersus recipit tutelam
iure postliminii. Inst. 1, 20, 2.
§ 188. Ex his apparet, quot
sint species £utelarum. si uero
quaeramus in quot genera hae
species d^ducantur, longa erit
disputatio ; nam de ea re ualde
ueteres dubitauerunt, nosque
diligentius hunc tractatum
executi sumus et in edicti
interpretatione et in his libris
quos ex Q. Mucio fechnus. hoc
£antisper sufficit admonuisse,
quod quidam quinque genera
esse dixerunt, ut Q. Mucius ;
alii tria, ut Ser. Sulpicius ; alii
duo, ut Labeo ; alii tot genera
esse crediderunt, quot etiam
species essent.
captive returns he recovers the
guardianship in virtue of his re-
habilitation.
§ 188. The foregoing statement
shows the various forms of guar-
dian : the question of the number
of orders to which these forms
may be reduced involves a long
discussion, for it is a point on
which the ancient jurists differed
greatly ; and as I have examined
it at length, both in my interpre-
tation of the edict and in my
commentary on Quintus Mucius,
for the present occasion it may
suffice to observe that some, as
Quintus Mucius, make five orders ;
others, as Servius Sulpicius, three ;
others, as Labeo, two ; others make
as many orders as there are forms
of guardian.
§ 188. In the time of Justinian there were three forms of guardian,
— testamentary, or appointed by will ; statutory, or prescribed by
the law in case of intestacy ; and magisterial (dativus), or appointed
by the magistrate, in default of a testamentary or statutory guardian.
The other forms of guardian had become obsolete, except a kind of
fiduciary one, Inst. 1 , 1 9, in consequence of the change in legislation.
For an account of Q. Mucius Scaevola (Consul B.C. 95) and
Servius Sulpicius Kufus (Consul B.C. 51), who maybe regarded as
the fathers of Roman jurisprudence, see Roby, Intr. to Justinian's
Digest, pp. cvi and cxi.
DE MVLIERVM TVTELA.
§189. Sed inpuberes quidem
in tutela esse omnium ciuita-
tium iure contingit, quia id
naturali rations conueniens est,
ut is qui perfectae aetatis non
sit, alterius tutela regatur. nee
fere ulla ciuitas est, in qua non
licet parentibus liberis suis in-
puberibus testamento tutorem
dare ; quamuis, ut supra dixi-
mus, soli ciues Romani uidean-
tur liberos suos in potestate
habere. Inst. 1,20, 6.
§ 189. The wardship of children
under the age of puberty is part
of the law of every state, for it
is a dictate of natural reason that
persons of immature years should
be under the guardianship of
another, in fact there is scarcely
any state which does not permit a
parent to nominate a testamentary
guardian for his children under
the age of puberty, though, as we
have before stated, only citizens
of Rome appear to be invested
with parental power.
i. §§ 189-193.] DE MVLIERVM TVTELA
109
§ 190. Feminas uero perfe-
ctae aetatis in tutela esse fere
nulla pretiosa ratio suasisse
uidetur ; nam quae uulgo credi-
tur, quia leuitate animi plerum-
que deeipiuntitr et aequum
erat eas tutorum auctoritate
regi, magis speciosa uidetur
quara uera ; mulieres enim,
quae perfectae aetatis sunt,
ipsae sibi negotia tractant et in
quibusdam causis dicis gratia
tutor interponit Auctoritatem
suam,8aepeetiam inuitus auctor
fieri a praetore cogitur.
§ 191. Unde cum tutore
nullum ex tutela iudicium mu-
lieri datur ; at ubi pupillorum
pupillarumue negotia tutores
tractant, ei post pubertatem
tutelae iudicio rationem red-
dunt.
§ 192. Sane patronorum et
parentum legitimae tutelae uim
aliquam habere intelleguntur
eo, quod hi neque ad testamen-
tum faciendum neque ad res
mancipi alienandas neque ad
obligationes suscipiendas au-
ctores fieri coguntur, praeter-
quam si magna causa alienan-
darum rerum mancipi obliga-
tionisque suscipiendae inter-
ueniat ; eaque omnia ipsorum
causa constituta sunt, ut, quia
ad eos intestfatarum mortuarum
hereditates pertinent, neque per
testamentum excludantur ab
hereditate neque alienatis pr<?-
tiosioribus rebus susceptoque
acre alieno minus locuples ad
eos hereditas perneni&t.
§ 193. Apud peregrines non
similiter ut apud nos in tutela
aunt feminae; sed tamen ple-
§ 1 90. But why women of full
age should continue in wardship
there appears to be no valid reason ;
for the common allegation, that on
account of levity of dispositi on they
are readily deceived, and that it
is therefore right that they should
be controlled by the sanctionary
power of a guardian, seems rather
specious than true, for women of
full age administer their own pro-
perty, and it is a mere formality
that in some transactions their
guardian interposes his sanction ;
and in these cases he is frequently
compelled against his own will
to give his sanction.
§ 191. Accordingly, a woman
has not the tutelary action against
her guardian ; whereas since the
guardians of youthful wards, both
male and female, administer their
wards' property, they are liable
to be sued on account of such ad-
ministration when the ward has
come to the age of puberty.
§ 192. The statutory guardian-
ship of patrons and parents is not
purely ineffective, as they cannot
be compelled to give their sanction
to a will or to the alienation of
mancipable property, or to the
undertaking of obligations, unless
there are very weighty reasons for
the obligation or the alienation ;
but this rule is in their own
interest as heirs of intestacy, and
is designed to prevent their loss
of the estate by testamentary
disposition, or the diminution of
its value by debt or by alienation
of a considerable portion.
§193. In other countries, though
not under the same tutelage as
at Eome, women are generally
110 DE PERSONIS [i. §§ 189-193.
rumque quasi in tutela sunt ; subject to a quasi tutelage : for
ut ecce lex Bithynorum, si quid instance, the law of Bithynia
mulier contrah&t, maritum au- requires the contract of a woman
ctorem esse iubet aut filium *° be sanctioned by her husband
eius puberem. or bJ a son above tne aSe of
puberty.
As women were capable of administration, the functions of the
guardian, which in the case of infants were either administrative
or sanctionative, in the case of women were confined to sanctioning.
Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem
interponunt : mulierum autem tutores auctoritatem dumtaxat inter-
ponunt, Ulp. 11, 25. It is transparent that the wardship of women
after full age was not designed to protect their own interests, but
those of their heirs apparent, their agnates. Originally the autho-
rization of the guardian was not sufficient to validate the will of an
independent woman : it was necessary that she should first break
the ties of agnation, and separate from her family by means of a
coemption (with her guardian's sanction) and subsequent reman-
cipation and manumission. She then, with the sanction of the
manumissor, in his character of fiduciary guardian, could make
a valid will. In the time of Gaius, Hadrian having abolished
the necessity of coemption, to make a valid will an independent
woman only required the sanction of her guardian, 2 § 112, and
Claudius, as we have seen, had put an end to agnatic guardianship,
§ 171.
When a woman was liberated from the administrative control of
her guardian, and the guardian had no longer any interest in the
succession to her property, the simplest course would have been to
declare her dispositions valid without his sanction — to declare her
no longer a ward. But with characteristic conservatism of forms,
Roman law, to avoid the open change, declared the auctoritas still
necessary, but made it compulsory instead of voluntary — gave the
ward a power of extorting it from the guardian, 2 §§ 80-85. So
the act whereby a testamentary heir accepts an inheritance was
originally absolutely voluntary : but when trusts (fidei commissa)
were introduced, and the heir as trustee or fiduciarius by ground-
lessly refusing to make the necessary aditio, which in this case was
the merest form, could produce intestacy, and thus deprive the
beneficiary, fidecommissarius, or cestui que trust of the provision
destined for him by the bounty of the testator : instead of declaring
the aditio of the heres unnecessary to the acquisition of the fortune
by fideicommissarius ; or that in such a case the beneficiary should
be deemed to be a direct substitutus of the heres ; or that the
vexatious refusal of the heres should be deemed to be an aditio and
I. §§ 189-193.] DE MVLIERVM TVTELA 111
restitutio ; the legislator ordained that the heres should be com-
pelled to make aditio in order to complete the title, 2 § 258, comm.
Again, the terms of the security given by the guardian (rem pupilli
salvam fore) against dilapidation of the estate of the ward made the
responsibility of the guardian depend on his actual administration ;
so that he was not responsible if the estate went to ruin in con-
sequence of his total abstention from the performance of his duties.
To protect the ward against this contingency, instead of altering the
formula of the satisdatio, and making the liability of the guardian
depend on his appointment and not on his acting ; the law com-
pelled him to proceed to some act of guardianship, in order to bring
him under the unchanged terms of his security ; Dig. 46, 6, 4, 3.
In all these and other cases a compulsory act was substituted for
a voluntary act for the sake of giving the law an outward appearance
of continuity. At last, at some period before the epoch of Justinian,
the tutelage of women above the age of puberty had ceased in form
as well as in substance, and no sanction of a guardian, whether
voluntary or compulsory, was required.
It is to be observed, that as women were gradually enfranchised
from their disabilities, they also forfeited some of their original
privileges. It was a rule of the administration of justice that
while error of fact might be pleaded to defend a person against the
consequences of his own acts or omissions, no one should be allowed
to allege an error of law, Dig. 22, 6, 9 pr. An exception however
was made in favour of minors, of soldiers, of the utterly uneducated
(rustici), and of women. Against their ignorance of rules of law,
particularly those rules of jus civile which are not, like rules of
jus gentium or natural e, the almost self-evident dictates of reason
and common sense, they were relieved by a branch of the praetor's
extraordinary jurisdiction, called in integrum restitutio, a power of
cancellation and rescission, in cases of manifest, collision between
law and equity ; §§ 197-200, comm. This privilege of women
was partially abrogated by a constitution of the Emperor Leo,
A. D. 472; Cod. 1, 18, 13. 'To prevent the indiscriminate revo-
cation by women of all their contracts on the ground of omission
of error, be it enacted, that ignorance of law, whereby a woman
is damnified in her right or property, shall only be a title to
relief in those cases where previous statutes have sanctioned such
relief.'
From § 189 it might appear that Gaius referred the institution
of guardianship to the code of jus gentium. We have, however,
quoted from the Institutes, §§ 142, 154, comm., a passage which
ascribes it to jus civile : and, indeed, no institution confined in its
operation almost entirely to cives, can be supposed to belong to
112 DE PEESONIS [t. §§ 194-196.
ju's gentium or natural law. Moreover, the law of guardianship
has been most variable, not only if we look to different countries,
but also if we look at different periods in the same country ;
and the praetor or chancellor or other authority that has had the
supervision of guardians has always exercised a great latitude of
discretion ; features which again forbid us to ascribe the rules of
wardship to any comparatively immutable code of nature. Tutela
was in fact an old Roman institution, by which the gens or familia
maintained control in its own interest over its weaker members,
who were not subject to patria potestas. It is possible that this
control was at first exclusively exercised by the gens, in whom the
ownership of all land occupied by the gentiles may have been vested,
and that agnatic as well as testamentary guardianship was first
instituted by the law of the Twelve Tables, whereby patricians and
plebeians were put on an equality in respect of private rights. That
the gens was in the habit of taking charge in some way of lunatics
and insane persons we know from the words of the Twelve Tables,
which have come down to us — 'Si furiogus exit, ast ei custos ne
exit, adgnatum gentiliumque in eo pecuniaque eius potestas est.'
Cf. Muirhead, Eoman Law, §§ 26, 28,
QVIBVS MODIS TYTELA FINIATVK.
§194. Tutela autem libe- § 194. Guardianship is termin-
rantur ingenuae quidem trium ated for a freeborn woman by title
(liberorum iure libertinae of being mother of three children,
uero quattuor, si in patroni} for a freedwoman if under statu-
liberorumue eius legitima tu- toiT guardianship of her patron
tela sint; nam ceterae quae or his children by being mother
alterius generis tutores habent, °J.fol" ph^n: those who have
r i j. A A-T ± £j • • i other kinds oi guardians, Atihan
[uelut Atilianos aut fiduciaries ] or fid for instance/are libe-
trmm liberorum rare tutela rated from> wardship by being
liberantur. mothers of three children.
§ 195. Pofest autem pluri- § !95- There are various ways
bus modis libertina alterius by which a freedwoman may have
generis (tutorem} habere, ue- other kin_ds of g^rdians : for
luti si a femina manumissa sit ; m?ta.nce _ m case of ^\ man.u-
i A4-T ,-v 4- * mission by a woman, when she
tune enim e Leqe Atilia petere J , ,. ' , ,,
, , , must request a guardian under the
debet tutorem uel m pro- ^ M^ ^ the ovin
umc<m e lege J«Z)ia et Titia ; under the lex Julia and Titia>
nam in patronae tutela esse gince a female patron cannot be
non potest. her guardian.
§ 195 a. Item si <a> mas- § 195 a. Also on manumission
culo manumissa {fuerit} et by a male, if with his sanction
auctore eo coemptionem fecerit, she makes a coemption, and then
deinde remancipata et manu- is remancipated and manumitted,
I. §§ 194-196.] QVIBVS MODIS TVTELA FINIATVR 113
missa sit, patronum quidem
habere tutorein desinit, incipit
autem habere eum tutorem a
quo manumissa est, qui fidu-
ciarius dicitur.
§ 195 6. Item si patronus
eiusue filius in adoptionem se
dedit, debet liberta e lege Atilia
ud lulia et Titia tutorem pe-
tere.
§ 195 c. Similiter ex isdem
legibus petere debet tutorem
libert&, si patronus decesserit
nee ullum uirilis sexus libero-
rum in familia reliquerii.
§ 196. Masculi autem cum
puberes esse coepermt, tutela
liberantur. puberem autem
Sabinus quidem et Cassius ce-
terique nostri praeceptores eum
esse putan£, qui habitu corporis
pubertatem ostendit, id est eum
qui generare potest ; sed in his
qui pubescere non possunt,
quales sunt spadones, earn
aetatem esse spectandam, cuius
aetatis puberes fiunt ; sed di-
uersae scholae auctores annis
putant pubertatem aestiman-
dam, id est eum puberem esse
existimant qui xini annos ex-
pleuit. 1 Inst. 1, 22 pr.
for the patron then ceases to be
guardian, and is replaced by the
second manumitter, who is called
a fiduciary guardian.
§ 1956. Also on the adrogation
of her patron or his son she must
demand a guardian under the lex
Atilia or Titia.
§ 195 c. Similarly in compli-
ance with the same laws she must
demand a guardian on the decease
of her patron without leaving any
male descendant in the family.
§ 196. For males the attain-
ment of the age of puberty is a
release from wardship. Puberty,
according to Sabinus and Cassius
and the other authorities of my
school, depends on physical de-
velopment, that is, on capacity of
generation ; or in case of im-
potence, eunuchs for instance, on
the completion of the age which
usually implies capacity of gene-
ration. The other school hold
that puberty is to be exclusively
measured by age, that is to say,
that it should always be deemed
to be attained on the completion
by a male of his fourteenth year.
§ 196. All jurists agreed that in the case of impotence, whether
natural or acquired, some fixed date must be assumed as the conven-
tional period of puberty. The Sabinian rule appears to be preserved
in a passage of Paulus : Spadones eo tempore testamentum facere pos-
sunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2.
Fourteen was assumed to be the average age of puberty ; but it
was too early, even in the southern climes subject to Eoman legis-
lation, for a minority of constitutions which advance more slowly
to maturity. Eighteen was supposed to be sufficiently postponed
to include most of these cases of retarded development. We have
already, in treating of adrogation, § 106, commentary, met with
the phrase, plena pubertas, denoting eighteen years of age.
114
DE PEKSONIS
[i. §§ 197-200.
DE CVKATORIBVS.
(25 uersus in C legi nequeunt)
§ 197. aetatem per-
uenerit, in qua res suas tueri
possit ; sicut apud peregrinas
gentes custodiri superius in-
dicauimus. Inst. 1, 2, 3.
§ 198. Ex isdem causis et
in prouinciis a praesidibus
earum curatores dari solent.
Inst. 1. c.
§ 197. After release from tute-
lary guardianship the estate of a
minor is managed by a curator
Until he reaches the age at which
he is competent to attend to his
own affairs, and the same rule
obtains in other nations, as we
have already mentioned.
§ 198. Under similar circum-
stances the president of a province
appoints a curator.
DE SATISDATIONE TVTOKVM VEL CVRATORVM.
§ 199. Ne tarn en et pupil-
lorum et eorum qui in curatione
sunt negotia a tutoribus cura-
toribusque consumantur aut
deininuantur, curat praetor, ut
et tu tores ~(ety curatores eo
nomine satisdent.
Inst. 1,24 pr.
§ 200. Sed hoc non est per-
petuum ; nam et tutores testa-
vnento dati satisdare non co-
guntur, quia fides eorum et
diligentia ab ipso testatore pro-
bata est ; et curatores, ad quos
no% e lege curatio pertinet,
sed (qui) uel a consule uel a
praeside prouinciae dantnr,
plerumque non coguntur satis-
dare, scilicet quia satis honesti
electi sunt. Inst. 1. c.
§ 1 99. To protect tutelary wards
and those having a curator from
the destruction or waste of their
property by their guardians and
curators, it is the function of the
praetor to require such guardians
and curators to give security for
due administration.
§ 200. But this is not without
exception, for testamentary guar-
dians are not compelled to give
security, as their integrity and
vigilance have been approved by
the testator ; and curators who
have not been appointed by any
statute, but by the nomination of
a consul or praetor or president
of a province, are generally not
required to give security, their
selection being deemed sufficient
evidence of their trustworthiness.
§ 197. In English jurisprudence there is no distinction corre-
sponding to that between tutor and curator, impubes (pupillus) and
minor (adolescens). Infant and minor are in English synonymous ;
guardianship continues to the attainment of majority, i.e. to the
completion of twenty-one years of age ; and after that the young of
both sexes are considered to be capable of taking care of themselves,
and are free from further control. At Eome wardship (tutela) ceased
at puberty, or, as the law came to be denned, at the age of fourteen
I. §§197-200.] DE CVRATORIBVS 115
for males and twelve for females, ages at which the young manifestly
continue to stand in need of guidance and protection, though
according to Eoman law they were then fully competent to administer
their own property, and to dispose of it by will.
Such protection was provided for them partly by two statutes,
partly by praetorian legislation, (i) The lex Plaetoria, or Laetoria,
was as old as Plautus, who about 186 B.C. makes a youth exclaim:
Lex me perdit quinavicenaria ; metuunt credere omnes, Pseudolus,
303. 'The statute with its five and twenty years prevents my
getting credit.' It made a criminal offence, and subject to a criminal
prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what
Cicero calls circumscriptio adolescentium, De Off. 3, 1 5 ; i. e. over-
reaching and circumventing persons below the age of twenty-five.
Such is Savigny's interpretation of judicium publicum, Vermischte
Schriften, 18. Ihering maintains that judicium publicum denotes
in this passage not a criminal prosecution but an actio popularis ;
i.e. a civil action that could be instituted not only by the Minor but
by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst.
1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores)
postulare, et sciendum est quasi publicam esse hanc actionem, hoc est.
omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an
action similar to actio popularis, Geist des Komischen Kechts, § 52,
nn. 158, 159. The circumscription of a minor, like fraudulent mal-
administration by a guardian, rendered the person convicted thereof
infamis. A contractor with a minor might secure himself against
the penalties of the law, if a curator were nominated by the praetor
to advise the minor in respect of the special transaction.
(2) As the lex Plaetoria was only applicable in cases of fraud
(dolus malus, Cic. de Off. 3, 15), the protection it gave to minors
was inadequate : accordingly, the praetor, besides allowing a minor
to set up the plea of minority when sued in an action, proclaimed
in his edict that he would relieve minors who had been damaged
in consequence of inexperience and improvidence by rescission and
cancellation of the proceeding (in integrum restitutio). To obtain
this relief it was not necessary to prove any fraud on the part of
the person who contracted with the minor.
(3) A person who wished to bring an action against a minor
could compel him to obtain from the praetor a curator for the
purpose of defending the particular suit ; whose office ceased as
soon as the special litigation terminated. Marcus Aurelius, under
whom Gaius flourished, enacted that any minor who chose should
be able to obtain from the praetor a general curator (generalis
curator), who then should be charged with the general adminis-
tration (generalis administratio) of his estate, Capitolinus, 10. In
I 2
116 DE PERSONIS [r. §§ 197-200.
view of this option of the minor, Justinian could still say: Inviti
adolescentes curatores non accipiunt praeterquam ad liteni, Inst.
1, 23, 2. 'Unless they choose, minors need not have a curator,
except for a suit.' A minor who had a curator could not aliene
without the consent of his curator: he could incur an obligation
without the consent of his curator, subject to his right of in
integrum restitutio, though, unless he had a curator, persons would
not be very willing to contract with him. Even the existence of
a curator did not deprive the minor of his right of restitution, but
of course it could not be obtained so readily as when he acted
without the advice of a curator. The praetor allowed actiones
utiles against a curator, corresponding to those to which a tutor
was subject.
The tutor and curator were entirely separate functionaries : when
women were under perpetual tutelage, a woman might have both
a tutor and a curator. The curator of a minor must be dis-
tinguished from an agent (procurator), a person invested with
certain rights and duties, which will be explained when we examine
the different kinds of contract. An agent is governed by the in-
structions (mandatum) of his principal : a minor is under the direc-
tion of his curator : the employment of an agent is a private matter,
purely voluntary on the part of the principal ; the curator, like the
tutor, holds a public function, and having one is in some cases
involuntary on the part of the minor.
How exactly the lacuna in § 197 should be filled up is doubtful.
We do not know what is the previous passage referred to.
Besides minors, lunatics and prodigals of whatever age were
committed to the charge of curators. The cura of lunatics and
prodigals is, indeed, older than that of minors, being regulated by
the Twelve Tables, which directed that the nearest agnate should
be curator of a lunatic, and manage the estate of an interdicted
prodigal. In later times it was usual for the praetor or praeses pro-
vinciae to appoint a curator after inquest (ex inquisitione). Paulus
has preserved the form of words in which the prodigal was inter-
dicted : 3, 4 a, 7. ' By custom the praetor interdicts a prodigal
from the administration of his property in the following terms : As
thy profligacy is wasting the estate of thy father and ancestors,
and bringing thy children to destitution, I therefore interdict thee
from the control of thy patrimony, and from all disposition of
property.'
In integrum restitutio, a branch of the praetor's equitable juris-
diction, and one of the most remarkable cases of his cognitio extra-
ordinaria, has been mentioned more than once, and deserves here
a brief explanation. Kestituere in a general sense denotes any
I. §§ 197-200.] IN INTEGRVM RESTITVTIO 117
undoing of a wrong, any replacement of a person or his right in
his or its original condition, whether by the voluntary act of the
wrongdoer, or after action brought, and then either at the invitation
of the judge (in virtue of the clause, ni restituat, 4 § 47), or in
execution of a judicial sentence. But in the phrase we are exam-
ining it denotes the act, not of a private party, but of a magisterial
authority. In integrum restitutio is the restitution by the praetor
of a person to his original legal condition, in cases when some injury
has been done to him by operation of law. The interposition in such
cases of the highest Roman minister of justice bears some analogy
to the use made of the prerogative of the Crown in our own early legal
history. The function of thus overruling the law where it collided
with equity was only confided to the highest magisterial authority,
and even in his hands was governed by the principle that he was only
supposed to act in a ministerial, not in a legislative capacity. Five
grounds or titles (justae causae) to extraordinary relief (extraordi-
narium auxilium) were recognized and enumerated in the edict,
Dig. 4, 1 : intimidation (metus), fraud (dolus malus), absence, error,
minority (aetatis infirmitas). Two, however, of these titles, fraud
and intimidation, had additional remedies in the ordinary course
of procedure (ordo judiciorum), where they were recognized as
grounds of exception and personal action. Thus we find that a
praetor called Octavius introduced the actio and exceptio metus
mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called
Formula Octaviana, and that the famous Aquilius Gallus, the
colleague of Cicero, introduced the exceptio and the actio doli, Cic.
de Natura Deorum, 3, 30.
The chronological order of the remedy by Action and the remedy
by Restitution, like that of the historical relation of interdict to
action, is disputed. Savigny, §§ 112, 191, 199, holds that the remedy
by Restitution was older than the remedy by Action ; while Vangerow,
§ 185, holds that the remedy by Action was older than the remedy
by Restitution. As remedies they were very different in character,
the effect of a grant of restitution being simply to reinstate a person
in a legal right, which he had lost, not to give him damages on
account of the violation of a right.
There are three conditions of Restitution: (i) The first condition
is a Laesion by the operation of law, i. e. a disadvantageous change
in civil rights or obligations brought about by some omission
or disposition of the person who claims relief. This disadvantage
may either consist in positive loss of acquired property, or in missing
a gain which would not have involved, on the part of another,
a positive loss of acquired property. An instance of such a laesion
would be the loss of property by omitting to interrupt a usucapio
118 DE PERSONIS [i. §§ 197-200.
or by omitting to claim an inheritance, or by making some omission
in procedure. Cf. 4 § 57.
(2) A second condition is some special or abnormal position of the
person who claims relief when such special circumstance is the
cause of the loss which he has suffered. Thus a minor may be
relieved against an injudicious bargain, but not against the casual
destruction of the thing he has purchased, for this loss was not
occasioned by his minority or inexperience. Such abnormal
positions (justae causae) are compulsion, fraud, minority, absence,
error.
(3) A third condition of relief is the absence of various disen-
titling circumstances. Thus relief is granted against the effect
of legal dispositions and omissions, but not against the effect of
delicts. Again the extraordinary relief of in integrum restitutio
is not granted when the courts of law can administer an adequate
remedy.
Originally capitis minutio of a defendant was ground for a resti-
tution, 3 § 84 ; but this ceased at an early period to be anything more
than a formal case of restitution ; for rescission of the adrogation,
adoption, emancipation, whereby a person's debts were extinguished,
was granted as a matter of course without any previous investiga-
tion (causae cognitio), and without any period of prescription like that
which limited the right to pray for restitution.
This was, originally, annus utilis, and in the time of Justinian,
quadriennium continuum or four calendar years, which begin to run,
not from the date of the Laesion, but from the termination of the
Causa, i. e. the abnormal position — minority, absence, compulsion,
deception, error — whereby the Laesion was occasioned. Such at
least is Savigny's and Windscheid's opinion. Vangerow holds that,
except in Minority and Absence, prescription begins to run from the
date of Laesion, 4 §§ 110-113, comm.
Of the five titles to restitution that we have enumerated, four,
namely, intimidation, fraud, absence, error, implying equality of
rights in all parties, belong to the law of Things or actions ; title by
minority, implying a privileged class or inequality of rights, belongs
to the law of Persons.
As we shall have occasion in the next book, §§ 1-14, comm., to
use the expression Rerum universitas, it may seem appropriate,
before we quit the law of Persons, to give some explanation of the
contrasted term, Personarum universitas. A University of persons
in the private code is a fictitious or juristic person, composed
generally by the union of a number of individuals, and capable like
a natural individual (singularis persona) of the various rights and
duties of property, that is to say, of potestas, patronatus, dominium,
I. §§ 197-200.] PERSON ARVM VNIVERSITAS 119
servitus, obligatio ; and the power of suing and being sued (cf.
Sohm, §§ 37, 38).
Some Universities have a visible existence or representation in
a number of individual members, and are then called Corporations.
An essential incident of Corporations is that their rights are not
vested in the aggregate of individuals, but in the ideal whole, regarded
as distinct from the members of which it is composed. Examples of
such Corporations are municipalities (civitas, municipium, respublica,
communitas), colleges of priests, of Vestal Virgins, corporations of
subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial
guilds, e. g. smiths, bakers, potters, shipowners, mining companies
(aurifodinarum, argentifodinarum, salinarum, societas), contractors
for the revenue (vectigalium publicorum societas), social clubs (soda-
litates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen,
de Collegiis et sodaliciis Komanorum ; Karlowa, Eom. Eechtsg. 2 § 2).
Other juristic persons, not so visibly embodied in any natural
individuals, e. g. temples, churches, hospitals, almshouses, or any
other beneficent aims personified, are called by civilians, not Cor-
porations, but Foundations.
The state, though not strictly speaking a juristic person, as invested
with rights of property, was called in the time of the republic
Aerarium. Under the first emperors, when the public treasure
was divided between the emperor and the senate, the senate, as
in a proprietary position representing the republic, was called
Aerarium, while the treasury of the emperor was called Fiscus. At
an uncertain date, but after the time of M. Aurelius, when all power
was undisguisedly absorbed by the emperor, and the public chests
were united, the terms Aerarium and Fiscus lost their distinctive
meanings, and we find them used convertibly in the compilations
of Justinian. The Fiscus, as a proprietary unit, came to have a
special legal status and to be invested with peculiar privileges.
Juristic persons, though invested with rights of property, being
mere fictions or ideal unities, are, strictly speaking, incapable of
making a declaration of intention ; for how can a fiction have an
intention? It is true that slaves could acquire property and active
obligations for their proprietors ; but a slave could not aliene pro-
perty, nor be himself subject to a civil obligation, nor be a party to
a suit : and therefore Universities could not make such dispositions
by means of their slaves. In this respect they resemble infants and
lunatics ; and as infants and lunatics must be represented by their
guardians and curators, so juristic persons must be represented by
the agents designated and defined by their constitution. The tem-
porary representative of a Corporation, for the purpose of suing and
being sued, was called Actor ; a permanent representative for this
120 DE PERSONIS [r. §§ 197-200.
purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The consti-
tutions of juristic persons are too various to admit of any general
definition. But a juristic person was only bound by the act of its
representative, in so far as such juristic person was benefited thereby.
Dig. 12, 1, 27.
Although a Universitas is said to hold common property, the
relation of the members of a Universitas must not be identified with
that of Co-proprietors (communio). A co-proprietor is the separate
proprietor of an undivided ideal portion, which he can aliene, mort-
gage, and otherwise dispose of ; and which, by requiring a partition
(actio communi dividundo), he can always reduce to a real portion :
whereas the whole of the common property can only be dealt with
if the co-proprietors are unanimous. Members of a Universitas,
on the contrary, cannot demand a partition ; and dispositions of
the property of the Universitas can only be made by the vote
of a majority, sometimes only by a majority of two-thirds of the
members.
Every juristic person was originally incapable of being instituted
heir, as Pliny mentions in the case of municipalities : Nee heredem
institui nee praecipere posse rempublicam constat, Epist. 5, 7.
' Neither an inheritance nor a legacy by praeceptio (which implies
that the legatee is also heir, 2 § 217) can be left to a municipality.'
Juristic persons were not, as is sometimes stated by Koman jurists,
subject to this incapacity simply because, owing to the idea of
an artificial person not having yet been distinctly formed, they
were regarded as personae incertae, 2 § 238, but also because, being
fictions, they were incapable of entering on an inheritance (aditio),
which involves acceptance on the part of the heir, and excludes
representation. First the senate, disregarding this difficulty, allowed
municipalities to be instituted heirs by their own liberti, Ulpian 22, 5:
and subsequently the Emperor Leo, A. D. 469, gave to municipalities
the capacity of being instituted heir by any testator, Cod. 6, 24, 12.
No general enactment extended this capacity to all Corporations, but
some received it as a special privilege.
Originally municipalities, like other juristic persons, were in-
capable of taking bequests (legata), but subsequently they were
declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 § 195:
and this capacity was extended to Collegia, Templa and Churches,
Dig. 34, 5, 20. Towns were also capable of taking successions by
fideicommissum, Ulpian 22, 5.
Under Christian legislation Pious Foundations (pia corpora) were
made capable of taking hereditas and legatum: and testamentary
dispositions of hereditas and legatum, that would otherwise have
been void by the rule avoiding devises to incerta persona, e. g. a devise
I. §§ 197-200.] PERSONARVM VNIVERSITAS 121
to the poor of a town who, not forming a corporation, were not
persona certa, acquired validity from the pious purpose of the dis-
position.
The origin and extinction of Universitates, Collegia, &c. required
the assent of the Emperor. The special privileges and incapacities
which we have indicated, by their analogy to status, may perhaps
justify the mention of Universities in the law of Persons. Savigny,
§§ 85-102.
COMMENTARIVS SECVNDYS
DE BEBVS SINGVLIS ET DE RERVM
UNIVEESITATIBVS
DE EEKVM DIVISIONE.
§' 1. Super lore commentario
de iure personarum \ exposui-
mus ; modo uideamus de rebus ;
quae uel in nostro patrimonio
sunt uel extra nostrum patri-
monium habentur.
Inst. 2, 1 pr.
§ 2. Summa itaque rerum
diuisio in duos articulos didu-
citur : nam aliae sunt diuini
iuris, aliae humani.
§ 3. Diuini iuris sunt ueluti
res saerae et religiosae.
Inst. 2, 1, 7.
§ 4. Sacrae sunt quae diis
superis consecratae sunt ; reli-
giosae quae diisManibusrelictae
sunt. Inst. 2,1,8.
§ 5. Sed sacrum quidem hoc
solum existimatur quod ex
auctoritate populi Roinani con-
secraium est, ueluti lege de ea
re lata aut senatusconsulto
facto. Inst. 1. c.
§ 6. Religio'sum uero nostra
uoluntate facimus mortuum
inferentes in locum nostrum, si
modo eius rnortui funus ad nos
pertineat. Inst. 2, 1, 9.
§ 7. Sed in prouinciali solo
placet plerisque solum religio-
sum non fieri, quia in eo solo
dominium populi Romani est
uel Caesaris, nos autem pos-
sessionem tantum uel usum-
fructum habere uidemur; uti-
que tamen etiamsi non sit reli-
giosum, pro reHgioso habetur.
§ 1. In the preceding book the
law of persons was expounded ;
now let us proceed to the law of
things, which are either subject
to private dominion or not subject
to private dominion.
§ 2. The leading division of
things is into two classes : things
subjects of divine, and things
subjects of human right.
§ 3. Subjects of divine right
are things sacred and things reli-
gious.
§ 4. Sacred things are those
consecrated to the gods above ;
religious, those devoted to the
gods below.
§ 5. Sacred things can only be-
come so with the authority of the
people of Rome, by consecration
in pursuance of a law or a decree
of the senate.
§ 6. A religious thing becomes
so by private will, when an in-
dividual buries a dead body in his
own ground, provided the burial
is his proper business.
§ 7. On provincial soil, accord-
ing to most authorities, ground
does not become religious as the
dominion belongs to the people of
Rome or the Emperor, and in-
dividuals only have possession or
usufruct, but such places, though
not properly religious, are to be
regarded as quasi-religious.
IT. §§ 1-14] DE RERVM DIVISIONS
123
§ 7 a. Item quod in pro-
uinciis nonex auctoritatepopuli
Roman! consecratum est, pro-
prie sacrum non est, tamen pro
sacro habetur.
§ 8. Sanctae quoque res,
uelut mini et portae, quodam-
modo diuini iuris sunt*
Inst. 2, 1,10.
§ 9. Quod autem diuini
iuris est, id nullius in bonis
est ; id uero, quod humani iuris
est, plerutnque alicuius in
bonis est : potent autem et nul-
lius in bonis esse; nam res
hereditariae, antequam aliquis
heres existat, nullius in bonis
sunt. Inst. 1. c.
§96.
(8 fere uersus in C legi ne-
queunt)
1 *e domino.
§ 10. Hae autem quae hu-
mani iuris sunt, aut publicae
sunt aut priuatae.
§ 11. Quae publicae sunt,
nullius mdentur in bonis esse ;
ipsius enim uniuersitatis esse
creduntur. priuatae sunt quae
singulorum hominum sunt.
§ 7 a. Just as provincial soil, in
default of the authorization of the
people of Rome, is rendered by
consecration not sacred, but quasi-
sacred.
§ 8. Sanctioned places are to a
certain extent under divine domi-
nion, such as city gates and city
walls.
§ 9. Things subject to divine
dominion are exempt from private
dominion; things subject to hu-
man dominion are generally sub-
ject to private dominion, but may
be otherwise: for things belonging
to an inheritance before any one
has become heir have no actual
owner.
§ 10. Things subject to human
dominion are either public or pri-
vate.
§ 11. Things public belong to
no individual, but to a society or
corporation ; things private are
subject to individual dominion.
DE KEBVS INCOBPORALIBVS.
§ 12. Quaedam praeterea res
corporales sunt, quaedam in-
{corporales}. Inst. 2, 2 pr.
§ 13. Corporales hae {sunt}
quae tangi possunt, uelut fun-
dus homo uestis aurum argen-
tum et denique aliae res \nnu-
merabiles. Inst. 1. c.
§ 14. Incorporates sunt quae
tangi non possunt, qualia sunt
ea quae iure consistunt, sicut
hereditas ususfructus obliga-
tiones quoquo modo contractae.
nee ad rem per(tinet, quod in
hereditate res corporales con-~)
§ 12. Again, things are either
corporeal or incorporeal.
§ 13. Things corporeal are tan
gible, as land, a slave, clothing,
gold, silver, and innumerable
others.
§ 14. Things incorporeal are
intangible ; such as those which
have an existence simply in law as
inheritance, usufruct, obligation,
however contracted. For though
an inheritance comprises things
corporeal, and the fruits of land
124
DE REBVS SINGVLIS
[n. §§1-14.
tinentur et fructus qui ex fundo
percipiuntur corporales suni,
et quod ex aliqua obligation e
nobis debetur, id plerumque
corporal est, uduti fundus
homo pecunia ; nam ipsum ius
successionis et ipsum ius utendi
fruendi et ipsum ius obliga-
tionis incorporate est. eodem
numero sunt iura praediorum
urbajnorum et rusticorum.
j altius tollendi 1
luminibus uicini aed non
extollen|di, ne luminibus uicini
officiatur. | item fluminum et
stilicidiorum ius, ut — |
in aream — ] 1
ius aquae ducendae — j
Inst. 2, 2, 2 and 3.
•enjoyed by a usufructuary are cor-
poreal, and obligations generally
bind us to make over the convey-
ance of some thing corporeal: land,
slaves, money; yet the right of
succession, the right of usufruct,
and the right of obligation are
incorporeal. So are the rights
attached to property in houses and
land. The following are rights
attached to property in houses ;
the right of raising a building
and thereby obstructing the lights
of a neighbouring building ; the
right of prohibiting a building
being raised, so that one's lights
may not be interfered with ; the
right of letting rain-water fall in
a body or in drops on a neigh-
bour's roof or area ; the right of
having a sewer through a neigh-
bour's area, or a window in a
neighbour's wall (cf. Epit. 2, 1, 3).
The following are rights attached
to property in land : iter, a right of
way on foot or horseback ; actus,
a right of way for ordinary car-
riages ; via, a right of paved way
for heavy-laden wagons ; pecoris
ad aquam appulsus, a right of
watering cattle ; aquae ductus, a
right of conveying water through
the tenement of another.
Having treated of the law of Persons (unequal rights), we proceed
to the law of Things (equal rights), and the first right which Gaius
intends to discuss is the right called Dominion. Seduced, however,
by an ambiguity of the word Kes, which signifies either a right or
the subject of a right, his opening statements (§§ 12-14) are
deplorably confused.
In order to see our way, let us first examine Kes as denoting the
Object of a right. Every right implies, as we have stated, a duty ;
and eveiy right or duty implies at least two persons, one of whom is
entitled to the right while the other is liable to the duty. The imme-
diate OBJECT of every right is an act or forbearance of the person
who is liable to the duty. But the act or forbearance generally
relates to some body, that is, to some tangible portion of the
external world, whether a thing or a person. This body, accord-
ingly, may be called the mediate, indirect, or secondary Object of
ii. §§ 1-14.] DE RERVM DIVISIONS 125
the right. The secondary object of a right, however, is not always
a body ; it may be corporeal or incorporeal. For instance, dominium
over land is a right to forbearance on the part of all the world from
molestation of the owner in dealing with the land. A servitude,
say a right of way, is a right to forbearance on the part of all the
world from molestation of the person entitled when he passes over
certain land. A contractual right is a right to a positive act or forbear-
ance on the part of a determinate person, say, to the conveyance or
delivery of a certain piece of land. In these cases, land, the secondary
object of the right, is something corporeal. So, too, when a
person is the object of a right ; for instance, a child or a gladiator,
3 § 199, in the possession (detention or custody) of the parent or
employer, and whose removal from such possession engenders in the
removing party an obligation ex delicto. But in primordial rights,
the object, at least as distinguished from the two parties in whom
the right and duty respectively vest, is something incorporeal.
A man has a right to forbearance on the part of all the world from
molestation in his life, health, locomotion, honour. These objects
of the right are incorporeal. Other rights, apparently, have no
determinate object, corporeal or incorporeal, to which they are
correlated. In a right to the services of a menial or gladiator,
for instance, it would be hard to indicate any secondary or corporeal
object to which the obligation of the menial or gladiator relates.
It is clear that no division of Objects of right will coincide with
a classification of Eights: while, if we divide Ees in the meta-
physical sense of the World, or Being, or Existence (a sense sug-
gested by the differentiae, corporalis, and incorporalis), Dominium,
like all other rights, will be a member of the branch res incorporales,
or Ownership. Gaius, however, wishes us to identify Dominium
with res corporalis, and to make Obligation and the fractions of
Dominium (servitutes), and even some forms of Dominium (e. g.
hereditas), members of the contra-distinguished branch, res incor-
poralis. (Of. 3 § 83, omnes ejus res incorporales et corporales quaeque
ei debita sunt.)
Gaius was probably not entirely responsible for this confusion of
thought, which, perhaps, was too deeply inwoven in the formulae
of Eoman jurisprudence to be easily eliminated by an institutional
writer. E. g. the declaration (intentio) of a real action (in rem
actio) was of the form : Si paret (i) ilium fundum — (2) illam
hereditatem — actoris esse. (Cf. 4 § 3 In rem actio est cum aut
corporalem rem intendimus nostram esse aut jus aliquod nobis
competere.) Now as hereditas is a jus successionis, § 14, it is clear
that, if the second formula is correct, the first formula ought to be,
not, Si paret ilium fundum — but, Si paret illius fundi dominium —
126 DE REBVS SINGVLIS [n. §§ 1-14.
actoris esse. To meet this and similar inaccuracies of the framers
of the formularies, Gaius is misled into identifying in res corporalis
two things completely disparate, Right and the corporeal thing or
Secondary Object of a right. There is a similar confusion in English
law, chattels, tenements, and hereditaments being sometimes used to
denote the objects, movable or immovable, of certain rights, some-
times the rights over those objects : and just as Res is divided into
Corporalis and Incorporalis, so Hereditaments are divided into
Corporeal and Incorporeal ; although, if the term denotes a right,
both branches are equally incorporeal : if it denotes the secondary
object of a right, both branches are equally corporeal.
We shall find hereafter, 4 §§ 138-170, comm., that the position of
POSSESSION in Roman jurisprudence — whether it belongs to the
department of jus IN REM or of OBLIGATIO EX DELICTO — is a moot
question ; but at present we n«ed do no more than notice the
existence of the controversy. We need also only to indicate a
division of rights and duties into SINGLE rights and duties, and
AGGREGATES of rights and duties (UNIVERSITAS JURIS), such as
Hereditas. A UNIVERSITAS JURIS includes Obligations as well as
Rights, Jus in personam as well as Jus in rem, being in fact the
succession of One person to which another person succeeds. But in
spite of the diverse character of the elements of which it is composed,
the JURIS UNIVERSITAS itself, or the ideal whole of these various
elements, is regarded, «. g. in Hereditatis petitio, as a real Right, not
an Obligation ; as a Jus in rem, not a Jus in personam.
As Graius thought that he could obtain the idea of Dominium by
a division of Res into corporales and incorporales, so he seems to
have thought that he could distinguish private dominium, the special
department which he intends to examine, from other forms of do-
minium by a further division of Res. The phrases res divinae, res
humanae, res communes, res publicae, res privatae, do indeed sug-
gest the notion that res privatae is a specific member of the genus
Res ; but the appearance is fallacious. Very little reflection will
convince us that res divinae, res publicae, res privatae are not
a division of the OBJECTS of property (res) ; for the same thing, a
piece of ground, for instance, may be an object of divine or public
or private dominion ; but merely a division of proprietors. In res
divinae, the only doubtful case, the gods were deemed to be pro-
prietors. Sed et ilia interdicta quae de locis sacris et de religiosis
proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2.
' The interdicts respecting sacred and religious places protect a
quasi-pr operty . '
The division of the objects of right by their physical differences,
the only way in which they can be divided, though only of subor-
ii. §§ 1-14.] DE KERVM DIVISIONS 127
dinate importance, and though it cannot furnish the distinctions of
Dominium and Obligation, nor of Public and Private dominium, yet
has a considerable influence on jurisprudence, and demands a certain
amount of attention. Thus ocean, air, and light, as opposed to the
earth, are by their nature essentially res communes. Being in-
capable of appropriation, they have not been appropriated and are
held in communism. Again, in wild animals, as opposed to tame,
property is only coextensive with possession. On the difference
between specific and generic things, or things consumed by use,
quae pondere numero mensurave constant, and things not consumed
by use, is founded the distinction between the contracts of mutuum
and commodatum. Cf. 3 § 9(X On the same difference of specific
and generic things are founded different rules relating to the con-
tract of sale, 3 §§ 139-141, comm. ; and the distinction of movables
and immovables founds important differences in Eoman and other
systems of law.
The phrases in nostro patrimonio and extra nostrum patrimonium,
§ 1, are apparently equivalent to alicujus in bonis and nullius in
bonis, § 9, and to the expressions we meet elsewhere, in commercio
and extra commercium.
Of res communes, or things such as air and running water, which
sometimes come under discussion (cf. Inst. 2, 1, 1 Et quidem
naturali jure communia sunt omnium haec: aer et aqua profluens
et mare et per hoc litora maris) but are not mentioned by Gaius,
we may observe, that they only fall within the province of positive
law, as belonging to the jurisdiction of each particular state.
All the things within the territory of a given state are subject to
its dominion (dominium eminens), that is, are res publicae in a
general sense of the term. Of these things it allows the dominium
over some to vest in private individuals for their own advantage,
while it retains the dominium over others in itself as if it were a
corporation or collective person (personarum universitas). This
gives us a division of all things into res privatae and res publicae
in a narrower sense of the term. We must note, however, that the
dominium of the state is not exactly similar to private dominium,
that is to say, is not dominium ir the proper sense or the sense in
which the word is used in civil law. For the civil dominium. of
private persons is a right protected and sanctioned by a political
superior, whereas a sovereign state is by hypothesis in subjection
to no superior. A state, then, can only be said to have dominium
in a modified sense of the word, that is, so far as it is not restrained
by any positive law of any superior from using and dealing with
certain things as it may please.
Of things which are objects of public dominion, some are vested
128 DE REBVS SINGVLIS [n.§§l-14.
immediately in the state, others in subordinate persons, single or
corporate, magistrates, for instance, and municipalities, to be held
by such persons for various public purposes. Among these we
might also reckon res divini juris, though as dedicated to religious
purposes, such things were regarded by the Eomans as no man's
property, §§ 3-6.
Another division of res publicae is into res in patrimonio populi
and res non in patrimonio populi. Under the former are included
the public treasury, the public domain, public slaves, bequests
lapsing to the state (caduca) or res privatae otherwise devolving on
the state ; in other words, all things of which the state as universitas
retains not only the property but also the use and disposition (res
enim fiscales quasi propriae et privatae principis sunt, Dig. 43, 8,
2, 4). The other class includes high roads, public rivers, public
buildings, &c., that is, all things of which the property is in the
community and the use in the members of the community. Or
we may say that the property is in the universitas, but it is subject
to a personal servitude (usus) vested in all the private members of
that universitas (singuli, universi).
Not only res publicae but res privatae may be thus subject. For
instance, the banks of public rivers and the trees thereupon are the
property of the adjacent proprietors ; but the navigators of these
rivers have the right of mooring, landing, unlading, and using the
banks in various other ways, Inst. 2, 1, 4.
Ownership (dominium) absolute or pre-eminently so called, may
be denned as a right of unlimited duration, imparting to the owner
a power of indefinite enjoyment or use, and a power of aliening from
all who in default of alienation by him might succeed by descent ;
or, in other words, from all successors interposed between himself
and the sovereign as ultimus heres. It is accordingly sometimes
said to consist of jus utendi, fruendi, abutendi ; where abusus includes
the power of consumption or destruction, of dereliction, and of
disposition (sale, exchange, gift, mortgage, lease, &c.). Another
element is equally important, the right of exclusion (jus prohi-
bendi). Another is the jus transmittendi, i. e. the right of leaving
the integral right, in the absence of Disposition, to those whom he
would presumably have wished to be his successors.
Besides ownership (dominium) Eoman law recognizes various
kinds of partial property, real rights over an object of which the
dominium is in another person, called jura in re or jura in re
aliena, rights which fall short of absolute property but approxi-
mate to it in various degrees. Such rights, which are limitations
of ownership, are servitudes, § 14, mortgage (pignus), super-
ficies, and emphyteusis. These may all be regarded as detached
II. §§ 1-14.] SERVITUDE 129
fractions of ownership, portions of the right of dominion taken from
the proprietor and vested in another person. Servitudes are explained
by Justinian in the parallel passage of his Institutes (2, 3-5), and,
together with the other jura in re aliena, demand here a brief notice.
Servitudes are (i) praedial or real (praediorum), that is, belong to
a person as owner of a certain house or land (praedium dominans)
in respect of a house or land belonging to another proprietor (prae-
dium serviens), or (2) personal (personarum), that is, are vested in
a person without relation to his ownership of praedium dominans,
and being thus inseparably attached to him they are inalienable and
determine at his death. (Compare in English law the division of ease-
ments into easements appurtenant to land and easements in gross.)
Praedial servitudes are servitudes in the strictest sense, being con-
trasted with ownership by their precise and definite circumscription.
Ownership (dominium) is a right against the world which gives to
the party in whom it resides a power of dealing with the subject
which is not capable of exact definition. Servitude is such a right
against the world as gives to the party in whom it resides a power
of using the subject which is susceptible of precise description. It is
a definite subtraction from the indefinite powers of use and exclusion
which reside in the owner ; or a right against the owner and the rest
of the world to make certain use of a thing or prohibit certain uses.
Praedial servitudes are (i) rustic, relating to land, or (2) urban,
relating to houses. Urban servitudes are further subdivided into
Positive or Affirmative and Privative or Negative. The following
considerations will show the meaning of this division and its origin
in the nature of Property.
Servitudes are limitations of, or deductions from, another person's
ownership or dominium. Dominium contains, among other elements,
(A) certain powers of action (jus utendi), and (B) certain powers of
exclusion (jus prohibendi). Kestrictions on these powers will be
(a) a certain necessitas non utendi, and (6) a certain necessitas
patiendi. Correlative to these duties on the part of the owner
of the servient tenement will be certain rights of the owner of the
dominant tenement, viz. (a) a certain jus prohibendi, and (/3) a
certain jus utendi, or in other words, (a) a certain negative servitude,
and (#) a certain affirmative servitude. As it happens that all the
servitudes which public policy has recognized in relation to land
are of an Affirmative character (except Si concedas mini jus tibi
non esse in fundo tuo aquam quaerere, minuendae aquae meae gratia,
Dig. 8, 1, 15 pr. though, as Windscheid remarks, there is no reason
why this should not also be an urban servitude — ) and relate to some
transient action (except Ut tugurium mihi habere liceret in tuo,
scilicet si habeam pascui servitutem aut pecoris appellendi, ut, si
130 DE ADQVIRENDO RERVM DOMINIO [n.§§l-14.
hiems ingruerit, habeam quo me recipiam, Dig. 8, 3, 6, 1), they may
be called jus faciendi : while those relating to houses are both Affirma-
tive and Negative (jus prohibendi). Affirmative Urban servitudes,
implying some permanent structure, may, in conformity with classical
usage (e. g. jus tignum immissum habendi) for the sake of distinction
from the Rural servitudes, be called jus habendi : they resemble them
in the generic character that they are each a jus utendi.
(1) Instances of Rural servitude (jus faciendi) are iter, or jus eundi,
right of way for beast and man on foot or on horseback over the
servient tenement to the dominant tenement ; actus or jus agendi,
right of way for ordinary carriages (not for heavy-laden wagons) ;
via (or jus vehendi ?), right of paved way for heavy-laden wagons ;
aquae haustus, the right of drawing water from a private spring ;
aquae ductus, the right of conveying water over the servient tene-
ment ; pecoris ad aquam appulsus, the right of watering cattle ; jus
pecoris pascendi, the right of pasturing cattle ; jus calcis coquendae,
the right of burning lime ; jus cretae eximendae, the right of quarry-
ing for chalk ; jus arenae fodiendae, the right of taking sand ; jus
silvae caeduae, the right of cutting wood in a wood suitable for the
purpose.
(2) Instances of affirmative urban servitudes are jus tigni im-
mittendi, the right of inserting a beam in a neighbour's wall ; jus
oneris ferendi, the right of resting a weight on a neighbour's wall or
column (this servitude involves on the part of the servient owner the
positive obligation of repairing the servient wall (refectio) ; whereas
all other servitudes, as real rights, are contradistinguished from obliga-
tions or personal rights, by corresponding to the merely negative
duty of abstention ; cf. Windscheid, Pandekten, 1 § 2 1 1 a, note 3) ;
jus protegendi, the right of projecting a roof over the soil of a neigh-
bour ; jus stillicidii recipiendi or avertendi or immittendi, the right
of directing the rainfall on to a neighbour's roof or area ; jus cloacae
immittendae, the right of making a sewer through the area of a neigh-
bour; servitus luminum or jus luminis immittendi, the right of having
a window in a neighbour's wall ; jus officiendi luminibus vicini,
the reacquired right of an owner to diminish the light of a neighbour ;
jus altius tollendi, the reacquired right of an owner to increase the
height of a structure, § 31 ; the right of storing fruit in his villa, ut
fructus in vicini villa cogantur coactique habeantur ; of placing quar-
ried stones on his land, posse te cedere jus ei esse terram, rudus, saxa,
jacere posita habere, et ut in tuum lapides provolvantur ibique positi
habeantur, Dig. 8, 3, 3, 1 and 2. Vangerow holds that Aquaeductus,
implying jus habendi, though it is servitus Rustica as to the land
from which water is taken, is servitus Urbana as to the land over
which water is conveyed.
II. §§1-14.] SERVITUDE 131
(3) Instances of jus prohibendi are jus altius non tollendi, the
right of forbidding a neighbour to raise the height of his buildings ;
jus ne prospectui officiatur, the right of having a prospect uninter-
cepted ; jus ne luminibus officiatur, the right of having the access of
light to one's windows obstructed ; jus stillicidii non avertendi, the
reacquired right of prohibiting my neighbour from discharging his
rainfall into my area. Inst. 2, 3.
Personal servitudes (Inst. 2, 4 and 5) are rights of a less limited
character in respect of user, but more restricted as to duration than
praedial : instances are Habitatio, the right of occupying a house ;
Usus, the right of using a thing and consuming its immediate fruits
or products, without the right x>f letting the thing or selling its pro-
ducts ; of acquiring, in other words, its rent and profits, which may
be regarded as its mediate or secondary fruits. Fructus, usually called
Ususfructus, the further right of leasing the thing and selling its
fruits. Habitatio, Usus, Ususfructus were usually, though not in-
variably, life interests, and, unlike real servitudes, implied Detention
of the object ; Possession of it, as opposed to Detention (4 §§ 138-170,
comm.), remaining in the proprietor. For the modes of creating and
vindicating servitudes, see §§ 28-33 ; 4 § 88, comm. Servitus was the
only jus in re aliena belonging to jus civile. The other jura in re aliena,
subsequently instituted, were pignus, superficies and emphyteusis.
Pignus or hypotheca, as developed by praetorian law, was the right
of a creditor in a thing belonging to his debtor, maintainable against
any one, in order to secure satisfaction of his debt. The praetorian
action, by which the creditor could claim possession of the thing
pledged, corresponding to the vindicatio of the owner, is called actio
quasi Serviana in *em or hypothecaria. See 3 §§ 90, 91, comm.
Superficies is the right of a person who, having rented land for
building on a long or perpetual lease, has built a house on it, which
according to jus gentium, by the rule of Accession, is the property
of the proprietor of the soil ; cf. Inst. 2, 1, 29. The Praetor, how-
ever, recognized in the superficiarius a jus in re which he protected
by an interdict de superficie and ? ~ actio in rem utilis.
Jus in agYo vectigali or emphyteusis, as this species of right came
to be called subsequently to the time of Gaius, from waste lands of
the Emperor being let out under this kind of tenancy to be planted
or cultivated, was a perpetual lease which transferred to the tenant
or emphyteuta most of the rights of the owner. Accordingly he
could maintain actio vectigalis in rem against any one to recover
possession of the land thus leased to him. See 3 § 145. Although
emphyteusis might be of unlimited duration, and was alienable with-
out the consent of the owner, subject to his right of pre-emption,
yet the owner had a right of recovering the land for breach of con-
K -2,
132 DE ADQVIRENDO RERVM DOMINIO [n. §§ 14 o-27.
dition, or failing heirs of the emphyteuta, much as the feudal lord
of a fee could recover the fief on forfeiture or escheat of the tenant,
emphyteusis being even regarded by some as the model on which
feudaj tenure was instituted. This forfeiture or escheat to the lord
of the fee makes property in land theoretically imperfect, like
emphyteusis, falling short of ownership. Property in chattels, on the
contrary, is not held of a superior, and, therefore, is absolute.
The Profits and Easements of English law generally correspond to
the Servitutes of Roman law. But the principle : Servitutium non
ea natura est ut aliquid faciat quis, sed ut aliquid patiatur aut non
faciat, Dig. 8, 1, 15, 1 : ' Servitudes are not a right to a performance
but to a permission or forbearance : ' would exclude from the class of
Servitudes some members of the class of Profits ; e. g. Rents, which
are said to lie in render, i. e. to involve a performance of the party
burdened, not in prender, i. e. not to consist in an act of the party
entitled. Roman law adhered strictly to the principle that Real
rights, or rights against the world, can only correlate to negative
duties, duties of forbearance ; and that rights correlating to positive
obligations, or duties of performance, can only be Personal ; i. e. can
only regard a particular individual and his universal successors.
§§ 14a-27. Having described the various kinds of real right (jus
in rem), i. e. dominium and its fractions (jura in re), we proceed to the
TITLES of real rights, that is to say, the events to which these rights
are annexed by the law ; in other words, the modes prescribed by the
law by which such rights may be acquired ; in other words, the legal
definitions of the classes of persons in whom such rights are declared
to be vested.
The Titles of real rights are divisible into Titles by which single
real rights are acquired and Titles by which aggregates of rights
(universitates jurum) are acquired.
Titles by which single real rights are acquired are divisible into
Titles sanctioned by the civil law (jus civile) and Titles sanctioned by
natural law (jus gentium, jus naturale), natural law denoting the rules
of Roman law introduced by praetors, jurists and statutes, as con-
sonant to the general reason of mankind.
Titles to ownership by civil law are mancipatio, in jure cessio,
usucapio, and others which will be mentioned. Titles by natural law
are traditio, occupatio, accessio, and others which will be mentioned,
§ 35. We commence with Titles by civil law.
RERVM CORPORALTVM ADQVISITIONES CIVILES.
§ 14 a. aut mancipi §14a. Things are further divided
sunt aut nee mancipi. | Man- into mancipable and not manci-
cipi sunt 1 item aedes in pable ; mancipable are land and
IT. §§ 14 o-27.] RERVM C. ADQVISITIONES CIVILES 133
Italico solo 1 1
serui\tutes praediorum urbano-
rum nee mancipi sunt. \
1§120; Ulp.19,1.
§ 15. Item stipendiaria prae-
dia et tributaria nee mancipi |
sunt. sed quod diximus 1
mancipi esse 1 statim ut
nata sunt mancipi esse putan£ ;
Nerua uero et Proculus et
ceteri diuersae scholae auctores
non aliter ea mancipi esse
putant, quam si domita sunt ;
et si propter Tiimiam feritatem
domari non possunt, tune uideri
mancipi esse incipere, cum ad
earn aetatem peruenerit, qua
domari solent.
§ 16. Item ferae bestiae nee
mancipi sunt uelut ursi leones,
item ea animalia quae fere
bestiarum numero sunt, ueluti
elephanti et cameli ; et ideo ad
rem non pertinet, quod haec
animalia etiam collo dorsoue
domari solent ; nam ne nonien
quidem eorum animalium illo
tempore (notum} fuit, quo con-
stituebatur quasdam res man-
cipi esse, quasdam nee mancipi.
§ 17. Item fere omnia quae
incorporalia sunt nee mancipi
sunt, exceptis seruitutibus
praediorum rusticorum ; nam
eas mancipi esse constat, quam-
uis sint ex numero rerum in-
corporalium.
§ 18. Magna autem dif-
ferentia est inter mancipi res
et nee mancipi.
§ 19. Nam res nee mancipi
ipsa traditione pleno iure
alterius fiunt, si modo cor-
porales sunt et ob id recipiunt
traditionem.
houses in Italy ; tame animals
employed fordraught and carriage,
as oxen, horses, mules, and asses ;
rustic servitudes over Italian soil ;
but urban servitudes are not
mancipable.
§ 15. Stipendiary and tributary
estates are also not mancipable.
According to my school animals
which are generally tamed are
mancipable as soon as they are
born ; according to Nerva and
Proculus and their followers, such
animals are not mancipable until
tamed, or if too wild to be tamed,
until they attain the age at which
other individuals of the species
are tamed.
§ 16. Things not mancipable
include wild beasts, as bears,
lions ; and semi-wild beasts, as
elephants and camels, notwith-
standing that these animals are
sometimes broken in for draught
or carriage ; for their name was
not even known at the time when
the distinction between res man-
cipi and nee mancipi was estab-
lished.
§ 17. Also things incorporeal,
except rustic servitudes on Italian
soil ; for it is clear that these are
mancipable objects, although be-
longing to the class of incorporeal
things.
§ 18. There is an important
difference between things manci-
pable and things not mancipable.
§ 19. Complete ownership in
things not mancipable is trans-
ferred by merely informal delivery
of possession (tradition), if they
are corporeal and capable of
delivery.
134 DE ADQVIRENDO RERVM DOMINIO [n. §§ 14 a-27.
§ 20. Itaquo si tibi western
uel aurum uel argentum tradi-
dero siue ex uenditionis causa
siue ex donationis siue quauis
alia ex causa, statim tua fit ea
res, si modo ego eius dominus
sim.
§ 21. Jn eadem causa sunt
prouincialia praedia, quorum
alia stipendiaria alia tributaria
uocamus. stipendiaria sunt ea,
quae in his prouinciis sunt,
quae propriae populi Romani
esse intelleguntur ; tributaria
sunt ea, quae in his prouinciis
sunt, quae propriae Caesaris
esse creduntur. Inst. 2, 1, 40.
§ 22. Mancipi uero res sunt,
quae per mancipation em ad
aliurn transferuntu r ; unde etiam
mancipi res sunt dictae. quod
autem ualet (mancipatio, idem
ualet et in iure cessio.
§ 23. Et} mancipatio qui-
dem quemadmodum fiat, supe-
riore commentario tradidimus.
§ 24. In iure cessio autem
hoc modo fit : apud magistra-
tum populi Romani, ueluti
praetorem, is cui res in iure
ceditur rem tenens ita dicit
HVNC EGO HOMINES! EX 1VRE
QVIKITIVM MEVM ESSE AIO ;
deinde postquam hie uindica-
uerit, praetor interrog&t eum
qui cedit, an contra uindicet ;
quo negante aut tacente tune
ei qui uindicauerit, earn rem ad-
dicit ; idque legis actio uoca-
tur. hoc fieri potest etiam in pro-
uinciis apud praesides earum.
§ 25. Plerumque tamen et
fere semper mancipationibus
utimur. quod enim ipsi per
nos praesentibus amicis agere
possumus, hoc non est necesse
cum maiore difficultate apud
§ 20. Thus when possession of
clothes or gold or silver is de-
livered on account of a sale or
gift or any other cause, the pro-
perty passes at once, if the person
who conveys is owner of them.
§ 2 1. Similarly transferable are
estatesinprovincial lands, whether
stipendiary or tributary; stipen-
diary being lands in provinces
subject to the dominion of the
people of Borne ; tributary, lands
in the provinces subject to the
dominion of the Emperor.
§ 22. Mancipable things, on the
contrary, are such as are conveyed
by mancipation, whence their
name ; but surrender before a
magistrate has exactly the same
effect in this respect as mancipa-
tion.
§ 23. The process of mancipa-
tion was described in the preced-
ing book (1 § 119).
§ 24. Conveyance by surrender
before a magistrate (in jure cessio)
is in the following form : in the
presence of some magistrate of the
Roman people, such as a praetor,
the surrenderee grasping the ob-
ject says : I SAY THIS SLAVE is MY
PKOPERTY BY TITLE QuiKITAKY.
Then the praetor interrogates the
surrenderor whether he makes a
counter-vindication, and upon his
disclaimer or silence awards the
thing to the vindicant. This
proceeding is called a statute-
process ; it can even take place in
a province before the president.
§ 25. Generally, however, and
almost always the method of man-
cipation is preferred ; for why
should a result that can be accom-
plished in private with the assist-
ance of our friends be prosecuted
n. §§ 14 a-27.] RERVM C. ADQVISITIONES CIVILES 135
praetorem aut apud praesidem
prouinciae agere.
§ 26. Quodsi neque manci-
pata neque in iure cessa sit res
mancipi
(6 uersus in C legi nequeunt)
|*plena possessio con-
ex formula qua hi
— I 1 fructus
with greater trouble before the
praetor or president of the pro-
vince ?
§ 26. If neither mancipation
nor surrender before the magis-
trate is employed in the convey-
ance of a mancipable thing ....
cessa-
qu —
na —
§ 27. Item adhuc i-
(4 uersus in C legi nequeunt)
jnon fuissent— — -|
(7 uersus in C legi nequeunfy
-s 1 1 estquo
nomine 1 ere uel 1
praedium [dem ulla libera
ciuitas odraonendi sumus
— | esse, prouincialis soli
nexum non e | significa-
tionem solum ItaMcuro. man-
cipi esi.projuinciale nee mancipi
est. aliter enim ueteri lingua
a| mancipa — |.
§§ 14a-23. Mancipable things — things taken by the hand and so
alienable — were at first, probably, the more important accessories of
a farm, that is, slaves and beasts of burden — oxen, horses, mules and
asses (1 § 1 20), land itself in Italy and rural servitudes attaching to
such land being subsequently made mancipable.
These, the objects of principal value to an agricultural community,
became alienable by means of the formal proceeding by bronze and
balance, called mancipation, which Gaius says (1, 119) is an
imaginary sale.
In its origin, however, mancipation appears to have been not an
imaginary, but a genuine sale for valuable consideration. The intro-
duction of coined money by making the weighing of the bronze in
the scales a formality first gave the proceeding an appearance of un-
reality, but in order to maintain its original character, the Twelve
Tables, which were passed at the time when this important monetaiy
change took place, expressly declared that no property should pass by
mancipation, unless the price was actually paid to the mancipating
party or security given him for it (cf. Inst. 2, 1 , 41 Venditae vero et
traditae non aliter emptori adquiruntur, quam si is venditori pretium
solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore
dato : quod cavetur etiam lege duodecim tabularum) — where traditae
136 DE ADQVIRENDO KERVM DOMINIO [n. §§ 14 a-27.
is an evident Tribonianism for mancipatae. But this law was after*
wards evaded by juristic ingenuity, the practice of paying only a
nominal sum — a single sesterce — being held to be a sufficient com-
pliance with it. This made it possible to use mancipation as a mere
conveyancing form. Even in the case of genuine sales, it was found
advantageous only thus to pay a nominal sum in the mancipation
itself and to make the payment of the purchase money something
entirely apart, for by this means the mancipating party in fact escaped
the liability imposed on him by the Twelve Tables of paying, as
warrantor of the title (auctor), double the price to the other party to
the transaction in case of the latter being evicted (cf. Cic. pro Mur.
2, 3, in Caec. 19, 54), and it had the further advantage that the pur-
chaser was enabled to acquire ownership by the mancipation before he
had paid the actual purchase money (cf. Muirhead, Koman Law, § 30 ;
Sohm, pp. 51,61). How, by means of the nuncupation and by collateral
fiduciary agreements, mancipation was adapted to effect various legal
purposes, may be seen in other parts of the text and commentary.
The form of mancipation (1, 119) shows its archaic origin. If, as
has been thought by many modern writers, the witnesses to it
originally represented the five classes of the Eoman people, manci-
pation, at least in its ultimate form, cannot have been earlier than
the Servian constitution, by which this division of the people was
made. The advantage of requiring the presence of a number of
citizens to bear testimony to important transfers of property in an
age when writing was not in common use is apparent.
§§ 24-26. In jure cessio — the other mode of transfer peculiar to
Jus Civile, and so likewise confined to Eoman citizens, is an adapta-
tion of the legis actio per vindicationem to conveyancing purposes,
depending for its operation on the collusive admission by the
defendant of the supposed plaintiff's claim (confessus pro judicato
est). This fictitious process, which is not so primitive in character
as mancipation, though it was also recognized by the law of the
Twelve Tables, must have been introduced to circumvent the law
in order to effect objects unattainable by direct means, such as the
manumission of slaves. Though Quiritary ownership could be thus
conveyed, it was, for the reason given in § 25, rarely employed for
this purpose. But for creating or transferring some kinds of rights
surrender before a magistrate was essential, §§ 30, 34.
In jure cessio or surrender before a magistrate cannot fail to
recall to an English lawyer two similar modes of alienation that
recently existed in English jurisprudence, alienation by Fine and
alienation by Kecovery, both of which, like in jure cessio, were
based on a fictitious action ; in both of which, that is to say,
although the parties did not really stand in the relation of adverse
IT. §§ 14 o-27.] KERVM C. ADQVISITIONES CIVILES 137
litigants, the alienee was supposed to recover an estate by process of
law. By a Fine, an action commenced against the alienor and at
once terminated by his acknowledging the right of the alienee, a
tenant in tail could aliene the fee simple, so far at least as to bar
his own issue. By a Recovery, a tenant in tail could convey an
absolute estate in fee. This was an action supposed to be, not like
a Fine immediately compromised, but carried on through every
regular stage to the conclusion ; whereby the alienee recovered
judgement against the alienor, who in his turn recovered judgement
against an imaginary warrantor whom he vouched to warranty (cf.
laudat auctorem, 3 § 141, comm.).
Res nee mancipi, that is all objects of individual ownership, other
than res mancipi, were the only things allowed to pass in complete
ownership (pleno jure) simply by tradition, § 19.
This informal mode of alienation did not, like mancipatio, in jure
cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, § 65 ;
and was of later introduction than these.
The tradition or informal delivery of some res nee mancipi must,
however, have been common from the earliest times, though such
tradition would have been regarded at first merely as a delivery of
possession, to be protected by the law of theft, not as a title of
ownership, to be asserted by vindicatio. At a later period, however,
in order to facilitate commerce, tradition became by the influence of
jus gentium a mode of acquiring ownership in things which did not
belong to the privileged class of res mancipi. By tradition, which is
a transfer of possession, ownership may be also transferred, if the trans-
feror is himself owner; otherwise conformably to the principle 'Nemo
plus juris transferre potest, quam ipse habet ' — possession only passes,
bona fide possession, if the transferee knows nothing of his defective
title, mala fide, if he is aware of it. If we consider Surrender before
a Magistrate, Mancipation, Tradition, we shall see that they are
only three forms of one identical title, Alienation. The substance
or essence of the title, the intention on the one side to transfer
property, on the other to accept ;.t, is the same in all three ; it is
only the adventitious, or accidental, or evidentiary portion of the
title in which they differ.
Although delivery of possession, like the solemnities of manci-
pation and surrender, is, as compared with the will or intention of
the parties, only an evidentiary and declaratory part of the title ;
yet both parcels, delivery of possession, as well as agreement, are
indispensable in the transfer of ownership. ' Traditionibus et usu-
capionibus dominia rerum, non nudis pactis transferuntur,' Cod.
2, 3, 20. ' Tradition and usucapion, not bare agreement, operate as
a transfer of ownership.' Tradition, which is only applicable to
138 DE ADQVIRENDO RERVM DOMINIO [n. §§14a-27.
corporeal things, is usually effected by some physical act of appro-
priation, but it may take place without any such actual delivery
being made at the time. This occurs when a vendor agrees to hold
the property he sells on account of, or as agent of, the purchaser
(constitutum possessorium), or when a person already holding a thing
on account of the vendor, e. g. as a deposit, or loan, agrees to purchase
it (traditio brevi manu). (Inst. 2, 1, 44.)
We have spoken of tradition as a title whereby ownership was
acquired. Tradition, however, was only an element, usually the
final element, of the complex mode of acquisition, to which it gives
its name. To be capable of passing property, delivery must be
accompanied by another element, usually an antecedent element,
some contract of sale or other legal ground, which is evidence of an
intention to aliene. ' Nunquam nuda traditio transfert dominium,
sed ita si venditio vel aliqua justa causa praecesserit, propter quam
traditio sequeretur,' Dig. 41, 1, 31 pr. It is clear that bare
delivery, or transfer of physical control, without any further ele-
ment of Title, cannot pass Dominium, for in Loan for Use (commo-
datum) such transfer merely passes what may be called Detention
without Possession ; in Pledge (pignus) it passes what may be called
derivative Possession ; in Deposit it usually passes Detention alone,
but sometimes Possession also, though in this case also it is derivative
Possession, not Possession of the thing as one's own. (4 §§ 138-170,
comm.) The cases in which Ownership (Dominium) is passed by
Tradition may be reduced to three classes, traditio donandi animo,
traditio credendi animo, and traditio solvendi animo. In the first,
it simply confers ownership on the donee ; in the second, it confers
ownership on the transferee, and subjects him to an obligation ; in
the third, it confers ownership on the transferee, and discharges the
transferor of an obligation. In the two latter cases, i. e. tradition by
way of loan, as of money (mutui datio), and tradition by way of pay-
ment (solutio), the disposition or justa causa accompanying tradition
contains much thatis unessential to the transfer of dominium or owner-
ship, the only absolutely essential element being the intention of the
parties to convey and take dominium. In Donation the justa causa tra-
ditionis consists solely of this essential element. The justa causa, then,
which must accompany delivery, must involve the animus or voluntas
transferendi dominii, and this, apparently, is given as the whole
of the matter in a passage of Gaius quoted in Digest : ' Hae quoque
res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur ;
nihil enim tarn conveniens est naturali aequitati quam voluntatem
domini volentis rem suam in alium transferre ratam haberi,' Dig.
41, 1, 9, 3. Tradition is a mode of acquisition, 'in accordance with
Jus Gentium, for it is a plain dictate of natural justice, that the
§§ 14 a-27.] RERVM C. ADQVISITIONES CIVILES 139
will of an owner to transfer his ownership to another should be
allowed to take effect.'
In one case, as we have seen, the operation even of contract and
delivery combined was limited by the Twelve Tables, namely, in
Sale. Hence it came about that tradition did not operate a trans-
mutation of property without a further condition — payment of the
purchase money, unless the sale is intended to be a sale on credit,
or satisfaction is made to the vendor in some way. Inst. 2, 1, 41.
Delivery sometimes precedes the intention to transfer, for instance, in
a conditional sale ; in which case the transfer of property may be sus-
pended until the condition is fulfilled. The intended transferee may
be an incerta persona, for instance, when money is scattered among
a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46.
Tradition in Roman law was never fictitious ; it was always an
actual delivery of a power of physical or corporeal control, so the de-
livery of the keys of a house is not something symbolical or fictitious,
but a real transfer of a power of exercising dominion. The restriction
of tradition, as a mode of acquiring ownership, to res nee mancipi
had previously to the time of Gaius lost much of its importance, the
Praetor protecting one to whom a res mancipi, such as land, had
been delivered, as if Quiritarian ownership of it had been obtained
by usucapion, § 41. In Justinian's time Tradition had entirely super-
seded the civil titles of surrender before the magistrate and manci-
pation : the ancient distinction between res mancipi and res nee
mancipi being no longer in existence.
§ 21. This section contains the clearest statement which we possess
of the technical distinction between the two classes of provinces
instituted by Augustus. Those which were not under the direct
control of the Princeps were technically under the control of the
Senate and People (compare Dio Cassius, liii. 12) ; but, as the People
was mainly represented by the Senate, they are often spoken of as
Senatorial Provinces. The provinces of Caesar were far more
numerous ; about the time of Gaius they numbered thirty-one —
twenty-one being governed by Legati pro praetore, nine by Pro-
curators, and Egypt by its Praefect — while the Public Provinces
under Proconsuls numbered but eleven. See Marquardt, Staatsver-
waltung, i. p. 494. The attempt to keep these departments distinct
was a failure ; and the control of the Public Provinces by the Prin-
ceps was now very considerable, especially in matters of jurisdiction.
But the technical difference between the two kinds of provinces was
still preserved in the reign of Marcus Aurelius. Thus we find that
Emperor causing provinces to be transferred from the one to the
other category in obedience to military considerations, and asking
the Senate to vote money to him from the Aerarium, the treasury
140 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
which contained the dues from the Public Provinces (Vita Marci, 22,
Dio Cassius, Ixxi. 33).
During the Kepublic the taxes paid by provincials had been
called stipendium — a word which points to the view originally taken
that these revenues were meant to meet military expenses ; for
stipendium means pay for the army. During the Principate the
word tributum came also to be used for imperial taxes ; but this
passage of Graius shows that stipendium was "still employed for the
dues paid by the Public Provinces. The distinction between stipen-
diary and tributary provinces is perhaps based on a difference in
the mode of collecting, not of levying, the taxes. It seems that in
the Public Provinces the taxes were still collected by the local
governments themselves and paid to the Quaestors, whereas in
Caesar's Provinces the Procurators came into direct contact with the
tax-payer. The mode of collection was in the second case direct,
in the first indirect. It is also possible that the ownership of the soil
in Caesar's Provinces was regarded as vested in the Princeps, that
of the soil in the Public Provinces as vested in the Eoman state (see
Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be im-
plied in the two classes of provincialia praedia mentioned by Gaius.
The mode of taxation was uniform for the whole Empire, and the
assessments were made at intervals by the Emperor's officials. The
taxes were either imports on the land (tributum soli) or on the person
(tributum capitis). The land-tax was in most provinces paid either
in money or grain, more usually in the former, although in certain
minor districts it was delivered in the form of other produce. The
personal tax might be one on professions, income, or movable
property. Occasionally it was a simple poll-tax, this latter burden
being probably imposed on those provincials whose property fell
below a certain rating.
§ 24. The legati Caesaris or Presidents of imperial provinces had
originally on jurisdiction to preside over legis actio, but this was
afterwards conferred upon them, Tac. Ann. 12, 60.
§ 26. Gaius probably explained in this place the effect of tradition
of a res mancipi, § 41, and then went on to treat of the jus commercii.
Ulp. 19, 4, 5 Mancipatio locum habet inter cives Eomanos et Latinos
coloniariosLatinosque Junianos eosque peregrines quibus commercium
datum est. Commercium est emendi vendendique invicem jus.
RERVM INCORPORALIVM ADQVISITIONES CIVILES.
§ 28. (Res) incorporates tra- § 28. Incorporeal things are
ditionem non recipere mani- obviously incapable of transfer by
festum est. delivery of possession (traditio).
§ 29. Sed iura praediorum §29. But while before a magis-
ii. §§ 28-39.] RERVM INC. ADQVISITIONES CIVILES 141
urbanorum in iure cedi (tan-
turn) possunt ; rusticorum uero
etiam mancipari possunt.
^»
§ 30. Vsusfructus in iure
cessionein tantum recipit. nam
dominus proprietatis alii usum-
fructum in iure cedere potest,
ut ille usumfructum habeat et
ipse nudam proprietatem reti-
neat. ipse ususfructuarius in
iure cedendo domino proprie-
tatis usumfructum efficit, ut
a se discedat et conuertatur
in proprietatem ; alii uero in
iure cedendo nihilo minus ius
suum retine£; creditur enim
ea cessione nihil agi.
§ 31. Sed haec scilicet in
| Italicis praediis ita sunt, quia
j et ipsa praedia mancipationem
et in iure cessionem recipiunt.
alioquin in prouincialibus prae-
diis siue quis usumfructum siue
ius eundi agendi aquamue du-
cendi uel altius tollendi aedes
aut non tollendi, ne lumini-
bus uicini officiatur, ceteraque
similia iura constituere uelit,
pactionibus etsiipulationibus id
efficere potest, quia ne ipsa qui-
dem praedia mancipationem aut
{^71} iure cessionem recipiuni.
§ 32. Bed cum ususfructus
et hominum et ceterorum ani-
malium constitui possit, intel-
legere debemus horum usum-
r & , . ...
iructum etiam. in prouincns per
in iure cessionem constitui posse.
| 33. QuocZ autem diximus
! usumfructum in iure cessionem
/ tantum recipere, non est temere
dictum, quamids etiam per
mancipationem constitui possit
eo quod in mancipanda pro-
prietate detrahi potest; non
enim ipse ususfructus manci-
trate urban servitudes can only
be created by surrender before a
magistrate ; rural servitudes may
either be acquired by this method
or by mancipation.
§ 30. Usufruct can only be
created by surrender. A usufruct
surrendered by the owner of the
property passes to the surrenderee,
leaving the bare property in the
owner. A usufruct surrendered
by the usufructuary to the owner
of the property passes to the latter
and is merged in the ownership.
Surrendered to a stranger it con-
tinues in the usufructuary, for the
surrender is deemed inoperative.
§ 31. These modes of creating
usufruct are confined to estates in
Italian soil, for only these estates
can be conveyed by mancipa-
tion or judicial surrender. On
provincial soil, usufructs and
rights of way on foot, horseback,
and for carriages, watercourses,
rights of raising buildings or not
raising, not obstructing lights,
and the like, must be created by
pact and stipulation ; for the lands
themselves, which are subject to
these servitudes, are incapable
of conveyance by mancipation or
surrender before a magistrate.
§ 32. In slaves and other
animals usufruct can be created
even on provincial soil by sur-
render before a magistrate.
§ 33. My recent statement that
usufruct was only constituted by
surrender before a magistrate was
not inaccurate, although it may
in this sense be created by man-
cipation that we may mancipate
the property and reserve the usu-
fruct ; for the usufruct itself is
142 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
patur, sed cum in mancipanda
proprietate deducatur, eo fit ut
&pud alium ususfructus, apud
alium proprietas sit.
§ 34. Hereditas quoque in
iure cessionem tantum recipit.
§ 35. Nam si is, ad quern ab
intestate legitimo iure pertinet
hereditas, in iure earn alii ante
aditionem cedat, id est ante-
quam heres extiterit, proinde
fit heres is cui in iure cesserit,
ac si ipse per legem ad here-
ditaiem uocatus esset ; post
obligationem uero si cesserit,
nihilo minus ipse heres per-
manet et ob id creditoribus
tenebitur^ debita uero pereunt
eoque modo debitores heredi-
tarii lucrum faciunt; corpora
uero eius hereditatis proinde
transeunt ad eum cui cessa est
hereditas, ac si ei singula in
iure cessa fuissent.
§ 36. Testamento autem
scriptus heres ante aditam
quidem hereditatem in iure
cedendo earn alii nihil &git ;
postea uero quam adierit si
cedat,ea accidunt, quae proxime
diximus de eo ad quern ab in-
testato legitimo iure pertinet
hereditas, si post obligationem
(in) iure cedat.
§ 37. Idem et de necessariis
heredibus diuersae scholae au-
ctores existimant, quod nihil
uidetur interesse utrum (ali-
quis) adeundo hereditatem fiat
heres, an inuitus existat ; quod
quale sit, suo loco apparebii.
sed nostri praeceptores putant
nihil agefe necessarium here-
dem, cum in iure cedat heredi-
tatem.
not mancipated, though in manci-
pating the property the usufruct
is reserved so that the usufruct
is vested in one person and the
property or ownership in another.
§34. Inheritances also are only
alienable by surrender before a
magistrate.
§ 35. If the person entitled by
the statutory rules of the civil
law of intestacy surrender the in-
heritance before acceptance, that
is to say, before his heirship is
consummated, the surrenderee be-
comes heir j ust as if he was en titled
by agnation ; but if the agnate
surrenders after acceptance, in
spite of the surrender he con-
tinues heir and answerable to the
creditors, his rights of action
beingextinguished and the debtors
to the estate thus discharged of
liability without payment, while
the ownership in the corporeal ob-
jects of the inheritance passes to
the surrenderee just as if it had
been surrendered in separate lots.
§ 36. The surrender of an in-
heritance by a person instituted
heir by will before acceptance is
inoperative ; but after acceptance
it has the operation just ascribed
to the agnate's surrender of an
intestate succession after accept-
ance.
§ 37. And so has a surrender
by a necessary successor according
to the authorities of the other
school, who maintain that it
seems immaterial whether a man
becomes heir by acceptance or
whether he becomes heir ipso
jure, irrespective of his intention
(a distinction that will be ex-
plained in its proper place) : ac-
cording to my school a necessary
heir's surrender of the inheri-
tance is inoperative. [3 § 85.]
ii. §§28-39.] RERVM INC. ADQVISITIONES CIVILES 143
§ 38. Obligationes quoquo § 38. Obligations, in whatever
modo contractae nihil eorura way contracted, are incapable of
recipiunt. nam quod mini ab transfer by either method. For
aliquo debetur, id si uelim tibi if I wish to transfer to you my
deberi, nullo eorum modo qui- claim against a third person, none
bus res corporales ad alium of the modes whereby corporeal
transferuntur id efficere pos- things are transferred is effective :
sum, sed opus est, ut iubente bu* * k "JJ""?1 St* ^V™7
me tu ab eo stipuleris ; quae order the debtor should bind him-
/E ., , r vi self to you by stipulation : where-
res efficit ut a me hberetur et m debtor is discharged of
mcipiat tibi teneri ; quae dicitur hfg del/to me and becomes liable
nouatio obligations. to you . which transformation is
§ 39. Sine hac uero nouatione called novation of an obligation,
non poteris tuo nomine agere, § 39. In default of such nova-
sed debes ex persona mea quasi tion he cannot sue in his own
cognitor aut procurator nieus name, but must sue in my name
experiri. as mv cognitor or procurator.
§ 28. So incorporeal hereditaments in English law were said to
lie in grant, not in feoffment, i. e. to be only conveyable by deed, or
writing under seal ; whereas corporeal hereditaments were convey-
able by feoffment, i. e. by livery of seisin or delivery of possession.
§ 30. Inalienability was no peculiar characteristic of Usufruct and
other personal servitudes. Alienation of rights, or singular succes-
sion as opposed to inheritance or universal succession, was the excep-
tion, not the rule. Dominion over res singulae was alienable, but
almost all other rights were intransferable. If we except the case of
hereditas legitima delata, § 35, hereditas, as we shall see, was inalien-
able : and what is said of Urban and Eural praedial servitudes, §§ 29, 30,
refers to their creation, not to their alienation. In the law of Per-
sons, Patria potestas, 1 § 134, and Tutela in some cases, 1 § 168,
could be transferred but only by surrender before a magistrate (in
jure cessio), i. e. a process which feigned that there was no transfer.
Manus and mancipium could be extinguished but not transferred
[Ihering, § 32], except that, apparently, mancipium could be retrans-
ferred to the natural parent or ma_cipator, 1 § 132.
§ 31. It appears that convention (pactio et stipulatio) alone un-
accompanied by tradition or quasi-tradition was capable of creating
a right analogous to a Roman servitude in provincial land, to which
in jure cessio and mancipatio were inapplicable, in opposition to the
principle of Roman law, as stated by some modern writers, that mere
agreement can only create at the utmost an obligation (jus in perso-
nam), and in order to create a jus in rem must be accompanied by de-
livery of possession. But in our authorities this principle is confined
to res corporales, which alone admit of real tradition. Exceptional
instances in which agreement without any further accompaniment
144 DE ADQVIRENDO RERVM DOMINIO [n. §§ 28-39.
creates a jus in rem, that is, transfers either dominion or jus in
re aliena, arehypotheca (see 3 § 91, comm.) and societas omnium bono-
rum (see 3 § 148). Vangerow, however, holds, § 350, that pactio and
stipulatio could not create a genuine servitus, enforceable against the
servient person or tenement, but only an Obligatio, enforceable against
the contracting party and his heirs : that in the time of Gaius this
was all that could be accomplished ; but that afterwards, when quasi-
traditio of res incorporalis was recognized as practicable, genuine
Servitudes could be thus constituted. The distinction between
solum Italicum and provinciale was subsequently abolished, and
in jure cessio and mancipatio disappeared. In the Institutes of
Justinian we are told that both praedial servitudes (Inst. 2, 3, 4) and
the personal servitude of usufruct (Inst. 2, 4, 2) are created by pacts
and stipulations, nothing being there said of quasi-traditio, as a con-
dition of acquiring servitudes. The combination of pact and stipula-
tion for the purpose has been explained as an amalgamation of foreign
and Koman law, a mere pact being recognized by the former, but
unless embodied in a stipulation unenforceable by the latter (cf. Sohm,
§ 69 ; Dernburg, Pandekten, § 251, n. 16).
§ 32. In accordance with the principle that movables are personal,
a Roman could convey movable property by conveyances confined
to citizens, wherever such property was situated.
The servitus altius tollendi, or the right of increasing the height
of an edifice, is at first sight very enigmatical. My right of increas-
ing the height of my building, and thus obstructing the lights of my
neighbour, would seem to be part and parcel of my unlimited rights of
dominion : and, if a dispute arose, one would think that the burden
of proof would be on my neighbour, who would have to prove a
special limitation of my rights as owner of a praedium serviens and
a special right residing in himself as owner of a praedium dominans :
that is to say, that instead of my having to prove a servitude or jus
altius tollendi, my neighbour would have to prove a servitude or jus
altius non tollendi. Cum eo, qui tollendo obscurat vicini aedes, quibus
non serviat, nulla competit actio, Dig. 8, 2, 9. 'A man who by
building obscures his neighbour's lights, unless subject to a servitude,
is not actionable.' Altius aedificia tollere, si domus servitutem non
debeat, dominus ejus minime prohibetur, Cod. 3, 34, 8. 'A man
cannot be prevented from raising the height of his house unless it is
subject to a servitude.' The same rule is laid down in English
law. The following is perhaps the most probable solution of the
problem :
The extinction of Rural and Urban servitudes was governed by
different rules. The extinction of a Rural servitude was more easily
accomplished than that of an Urban servitude : it was effected by
ii. §§28-39.] RERVM SINGVLARVM ADQVISITIONES 145
simple non-user (non utendo) on the part of the dominant property for
a period, originally, of two years, afterwards of ten. The extinction
of an Urban servitude demanded, besides the negative omission of
use on the part of the dominant, a positive possession of freedom
(usucapio libertatis) on the part of the servient owner. Gaius (ad
Edictum Provinciale, Dig. 8, 2, 6) thus explains the difference : in
a servitus ne amplius tollantur aedes, or ne luminibus aedium
officiatur, if the windows of the dominant house are closed with
masonry there is a non-usus of the servitude on the part of the
dominant owner ; if at the same time the height of the servient
house is raised there is possession of freedom on the part of the
servient owner. Or in a servitus tigni immissi, if the dominant
owner removes the beam from his neighbour's wall there is on his
part non-usus ; if the servient owner builds up the orifice in
which the beam was inserted, there is on his part usucapio liber-
tatis. Originally Servitudes, like Dominium, could be acquired by
Usucapion ; and as Usucapion was applied to the extinction of Urban
Servitudes, it was regarded by the jurists as a mode of acquiring or
of creating an antagonistic servitude. On the extinction of a Rural
servitude, the servient property simply recovered its original dimen-
sions : an Urban servitude was a permanent diminution of the
servient property, and on its extinction the servient property, instead
of dilating to its original size, recovered what it had lost in the shape
of the annexation of a contrary servitude. When at an unknown
date the Usucapion of servitudes was abolished by a lex Scribonia,
an exception was made in favour of these Contrary servitudes, which
in fact were not genuine servitudes, but merely the expression of the
greater difficulty of extinguishing an Urban servitude. Libertatem
servitutium usucapi posse verius est, quia earn usucapionem sustulit
lex Scribonia, quae servitutem constituebat, non etiam earn, quae liber-
tatem praestat sublata servitute, Dig. 41, 3. 4, 28. 'The better view is
that extinction of servitude by usucapion is admissible, for the usuca-
pion abolished by the lex Scribonia was usucapion whereby a servitude
is constituted, not that which liberates by extinction of servitude. '
Thus he who laboured under a disability of building (jus altius non
tollendi) was regarded on its extinction as having acquired the oppo-
site easement, jus altius tollendi ; he wrho was relieved of the servitus
ne luminibus officiatur was regarded as acquiring a jus officiendi
luminibus vicini ; he who was relieved from the servitus stillicidii
avertendi in tectum vel aream vicini was deemed to acquire a jus stil-
licidii non avertendi, Gaius ad Edictum Provinciale, Dig. 8, 2, 2. It
does not appear that the ordinary requisites of Usucapio, titulus and
bona fides (§ 61, comm.), were required in this usucapio libertatis.
In usucapio libertatis, a right being acquired, the ten years are
WHITTUCK
146 DE ADQVIRENDO RERVM DOMINIO [ir. §§ 40-61.
complete on the commencement of the last day : in non-usus, a right
being lost, the ten years are not complete till the last day is termin-
ated.
The three servitudes, ne prospectui officiatur, ne luminibus officiatur.
ne altius tollatur, are similar in character, but differ in their degree of
extension. The servitus ne luminibus officiatur is not so extensive as
the servitus ne prospectui officiatur, for that may amount to an obstruc-
tion of prospect which does not cause a diminution of light, Dig. 8, 2,
1 5 : but is wider than servitus altius non tollendi, because light may be
intercepted by other causes than buildings, by plantation, for instance,
though building is the principal means of interception.
Servitus luminum has been already noticed, §§ 1-14, comm., as
apparently identical with jus luminis immitteiidi, i. e. the right of
having a window in a neighbour's wall. Luminum servitute con-
stituta id adquisitum videtur ut vicinus lumina nostra excipiat,
Dig. 8, 2, 4. 'The servitude of Lights entitles the owner of the
dominant house to have a window in the wall of his servient
neighbour.'
It appears from the above explanation that the servitus luminum
and the servitus ne luminibus officiatur belong to different categories,
for the servitus luminum, like the jus officiendi luminibus, belongs
to the category of jus habendi ; while the servitus ne luminibus
officiatur belongs to the category of jus prohibendi.
§ 34. Of. 3 §§ 85-87. The statement that an inheritance is not
mancipable may seem inconsistent with what we are afterwards told
of the testament by bronze and balance, § 102. There is, however,
no real inconsistency. The subject mancipated in the will by bronze
and balance, though a universitas, was not an inheritance — there was
no inheritance to mancipate, for nemo est heres viventis — but the
collective rights — familia, patrimonium — of the testator.
§ 38. The mode of transferring obligations may be more properly
considered hereafter, when we examine the titles by which Jus in
personam originates or terminates, 3§§ 155-162, comm. Gaius glanced
at the titles to Hereditas and Obligatio because he was treating of
Res incorporales under which they are included ; but he should
have abstained from discussing Obligatio because he is now dealing
with Jus in rem, and he should have abstained from discussing
Hereditas because he is now dealing with Res singulae.
§'40. Sequitur ut admonea- § 40. We must next observe
mus apud peregrines quidem that for aliens there is only one
unum esse dominium ; nam ownership and only one owner at
aut dominus quisque est, aut the same time of a thing, and so
.dominus non intellegitur. quo it was in ancient times with the
iure etiam populus° Romanus people of Rome, for a man had
II. §§40-61.]
DE VSVCAPIONIBVS
147
olim utebatur : aut enim ex
iure Qmritium unusquisque
dominus erat, aut non intelle-
gebatur dominus. sed postea
diuisionem accepit dominium,
ut alius possit esse ex iure
Quiritium dominus, alius in
bonis habere.
§ 41. Nam si tibi rem man-
cipi neque mancipauero neque
in iure cessero, sed tan turn
tradidero, in bonis quidein tuis
ea res efficitur, ex iure Quiri-
tium uero mea permanebit,
donee tu earn possidendo usu-
capias ; semel enim inpleta
usucapione proinde pleno iure
incipit, id est et in bonis et ex
iure Quiritium tua res esse, ac
si ea mancipata uel in iure
cessa (esset.
§ 42. Vsucapio antem) mo-
bilium quidem rerum anno
conpletur, fundi uero et aedium
biennio ; et ita lege xn tabu-
larum cautum est.
Inst. 2, 6 pr.
§ 43. Ceter%m etiam earum
rerum usucapio nobis conpetit,
quae non a domino nobis tra-
ditae fuerint, siue mancipi sint
eae res siue nee mancipi, si
modo eas bona fide acceperi-
mus, cum crederemus eum qui
traderet dominum esse.
§ 44. Quod ideo receptum
uidetur, ne rerum dominia diu-
tius in incerto essent, cum suf-
ficeret domino ad inquirendam
rem suam anni aut biennii
spatium, quod tempus ad usu-
capionem possessor! tributum
est. Inst. 1. c.
either quiritary dominion or none
at all. They afterwards decom-
posed dominion so that one person
might have quiritary ownership
of an object of which another
person had bonitary ownership.
§ 41. For if a mancipable thing
is neither mancipated nor surren-
dered before a magistrate but
simply delivered to a person, the
bonitary ownership passes to the
alienee, but the quiritary owner-
ship remains in the alienor until
the alienee acquires it by usu-
capion ; for as soon as usucapion
is completed, plenary dominion,
that is, the union of bonitary
and quiritary ownership, vests in
the alienee just as if he had ac-
quired the thing by mancipation
or surrender before a magistrate.
§ 42. Usucapion of movables
requires a year's possession for
its completion, of land and houses,
two years' possession, a rule which
dates from the law of the Twelve
Tables.
§ 43. Quiritary ownership of a
thing may also be acquired by
usucapion, when possession of it
has been transferred to one by a
person who is not the owner of
it, and this is the case in things
either mancipable or not mancip-
able, if they are received in good
faith by a person 'who believes
the deliverer to be owner of them.
§ 44. The reason of the law
appears to be the inexpediency of
allowing ownership to be long
unascertained, the previous owner
having had ample time to look
after his property in the year or
two years which must elapse
before usucapion is complete.
^45. Sed aliquando etiamsi § 45. Some things, however,
maxime quis bona fide alienam notwithstanding the utmost good
L a
148 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
rem possideat. non tamen ilK
usucapio procedit, uelut si quis
rem furtiuam aut ui possessam
possideat; nam furtiuam lex
xii tabularum usucapi prohibet,
ui possessam lex lulia et Plau-
tia. Inst. 2, 6, 1.
§ 46. Item prouincialia prae-
dia usucapioftem non recipiunt.
§ 47. (Item olim) mulieris,
quae in agnatorum tutela erat,
res mancipi usucapi non pote-
rant, praeterquam si ab ipsa
tutore (auctore) traditae es-
sent ; idque ita lege xn tabu-
larum cautum erat.
§ 48. Item liberos homines
et res sacras et religiosas usu-
capi non posse manifestum est.
(§ 49. Quod ergo uulgo dici-
tur furtiuarum rerum et ui
possessarum usucapionem per
legem xii tabularum problbi-
tam esse, non eo pertinet, ut ne
ipse fur quiue per uim possidet
usucapere possit(nam huic alia
ratione usucapio non conpetit,
quia scilicet mala fide possidet) ;
sed nee ullus alius, quamquam
ab eo bona fide ernerit, usuca-
piendi ius habeat.
Inst. 2,6,3.
§ 50. Vnde in rebus mobi-
libus non facile procedit, ut
'bonae fidei possessor i usucapio
ccwpetat, quia qui alienam rem
uendidit et tradidit furtum
committit ; idemque accidit
etiam si ex alia causa tradatur.
sed tamen hoc aliquando aliter
se habet ; nam si heres rem de-
functo commodatam aut loca-
tam uel apud eum depositam
existimans earn esse heredita-
riam uendiderit aut donauerit,
faith of the possessor, cannot be
acquired by usucapion, things,
for instance, which have been
stolen or violently possessed,
stolen things being declared in-
capable of usucapion by the law
of the Twelve Tables, and things
violently possessed by the lex
Julia and Plautia.
§46. So,too,provinciallandand
houses are incapable of usucapion.
§ 47. Formerly, when a woman
was under her agnate's guardian-
ship, her mancipable things were
not subject to usucapion, unless
she herself delivered possession
of them with her guardian's
sanction, and this was an ordi-
nance of the Twelve Tables.
§ 48. Free men, also, and things
sacred or religious, are obviously
not susceptible of usucapion.
§ 49. The common statement
that in things stolen or violently
possessed, usucapion is barred
by the law of the Twelve Tables,
means, not that the thief or vio-
lent dispossessor is incapable of
acquiring by usucapion, for he is
barred by another cause, his want
of good faith ; but that even a
person who purchases in good
faith from him is incapable of
acquiring by usucapion.
§ 50. Accordingly, in things
movable a possessor in good faith
cannot easily acquire ownership by
usucapion, because he that sells
and delivers possession of a thing
belonging to another is guilty of
theft. However, sometimes this
is otherwise, for an heir who be-
lieves a thing lent or let to, or
deposited with, the deceased to be
a portion of the inheritance, and
sells it or gives it away, is not
guilty of theft : again, the usu-
fructuary of a female slave who
n. §§ 40-61.]
DE VSVCAPIONIBVS
149
furtum non committit ; item si
is, ad quern ancillaeususfructus
pertinet, partum etram suum
esse credens uendiderit aut do-
nauerit, furtum non committit ;
/urtum enim sine adfectu fu-
randi non committitur. aliis
quoque modis accidere potest,
ut quis sine uitio furti rem
alienam ad aliquem transferat
et efficiat, ut a possessore usu-
capiatur. Inst. 2, 6, 3 and 4.
§ 51. Fundi quoque alieni
potest aliquis sine ui posses-
sionem nawcisci, quae uel ex
neglegentia domini uacet, uel
quia dominus sine successore
decesserit uel longo tempore
afuerit ; qu&m si ad alium bona
fide accipientem transtulerit,
poterit usucapere possessor ; et
quamuis ipse, qui uacantem
possessionem nactus est, intel-
legat alienum esse func^um, ta-
fiien nihil hoc bonae fidei pos-
sessor! ad usucapionem noce£,
(citm) inpro&ata sit eorum sen-
ientia, qui putauerint fvrtiuum
fund um fieri posse. Inst. 2, 6, 7.
§ 52. Rursus ex contrario ac-
cidit ut qui sciat alienam rem
se possidere usucapiat, ueluti
si rem hereditariam, cuius pos-
sessionem heres nondum nactus
est, aliquis possederit ; nam ei
concessum (est usu)capere, si
modo ea res est quae recipit
usucapionem ; quae species pos-
sessionis et usucapionis pro
herede uocatur.
§ 53. Et in tantum haec usu-
capio concessa est, ut et res
quae solo continentur anno
usucapiantur.
§ 54. Quare autem hoc casu
etiavi soli rerum annua con-
stituta sit usucapio, ilia ratio
believes her offspring to be his
property and sells it or gives it
away, is not guilty of theft ; for
there can be no theft without un-
lawful intention : and similarly
other circumstances may prevent
the taint of theft from attaching
to the delivery of a thing belong-
ing to another, and enable the
receiver to acquire by usucapion.
§51. Possession of land belong-
ing to another may be acquired
without violence, when vacant by
neglect of the owner, or by his
death without leaving a suc-
cessor, or his long absence from
the countiy, and an innocent
person to whom the possession
is transferred may acquire the
property by usucapion; for though
the original seizer of the vacant
possession knew that the land
belongs to another, yet his know-
ledge is no bar to the usucapion
of the innocent alienee, as it is
no longer held that theft can be
committed of land.
§ 52. On the other hand, know-
ledge that one is acquiring pos-
session of another person's pro-
perty (mala fides) does not al-
ways prevent usucapion, for any
one may seize a portion of an
inheritance of which the heir has
not yet taken possession and
acquire it by usucapion, provided
it is susceptible of usucapion, and
he is said to acquire by title of
quasi heir.
§ 53. With such facility is this
usucapion permitted that even
land may be thus acquired in a
year.
§ 54. The reason why even land
in these circumstances demands
only a year for usucapion is, that
150 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
est, quod olim rerum heredita-
riarum possessions uelvt ipsae
hereditates usucapi credeban-
tur, scilicet anno, lex enim
xn tabularum soli quidem res
biennio usucapi iussit, ceteras
uero anno, ergo hereditas in
ceteris rebus uidebatur esse,
quia soli non est quia neque
corporalis est. (et} quamuis
postea creditum sit ipsas here-
ditates usucapi non posse, ta-
men in omnibus rebus beredi-
tariis, etiam quae solo tenentur,
annua usucapio remansit.
§ 55. Quare autem omnino
tarn inproba possessio et usu-
capio concessa sit, ilia ratio est,
quod uoluerunt ueteres matu-
rius hereditates adiri, ut essent
qui sacra facerent, quorum illis
temporibus sujnina obseruatip
fait, et ut creditores haberent
a quo suum consequerentur.
§ 56. Haec autem species
possessionis et usucapionis
etiam lucratiua uocatur ; nam
sciens quisque rem alienam
lucri facit.
§ 57. Sed hoc tempore mm
non est luoratiua. nam ex
auctoritate Hadriani senatus-
consultum factum est u^ tales
usucapione$ reuocarentur. et
ideo potest heres ab eo qui rem
usucepit hereditateni petendo
proinde earn rem consequi,
atque si usucapta non essei.
§ 58. Necessario tamen herede
extante nihil ipso iure pro
herede usucapi potest.
in ancient times the possession
of property belonging to the in-
heritance was held to be a
means of acquiring the inheri-
tance itself, and that in a year :
for while the law of the Twelve
Tables fixed two years for the
usucapion of land and one year
for the usucapion of other things,
an inheritance was held to fall
under the category of ' other
things,' as it is neither land nor
corporeal : and though it was
afterwards held that the inheri-
tance itself was not acquirable by
usucapion, yet the property be-
longing to the inheritance, includ-
ing land, continued acquirable by
a year's possession.
§ 55. The motive for permitting
at all so unscrupulous an acqui-
sition was the wish of the ancient
lawyers to accelerate the accept-
ance of inheritances, and thus pro-
vide persons to perform the sacred
rites, to which in those days the
highest importance was attached,
and also to secure some one from
whom creditors might obtain
satisfaction of their claims.
§ 56. This mode of acquisition
is sometimes called lucrative usu-
capion, for the possessor know-
ingly acquires the benefit of
another's property.
§ 57. In the present day, how-
ever, this kind of usucapion is
not lucrative, for the Senate on
the motion of Hadrian decreed
that such usucapions are re-
vocable, and accordingly where
a person thus acquired a thing by
usucapion, the heir can sue him
by hereditatis petitio and recover
the thing just as if the usuca-
pion had never been completed.
§ 58. The existence of a neces-
sary heir excludes ipso jure the
operation of this kind of usuca-
pion.
ii. §§ 40-61.]
DE VSVCAPIONIBVS
151
§ 59. There are other condi-
tions under which a knowledge
of another's ownership is no bar
to usucapion. After a fiduciary
mancipation or surrender before
a magistrate of his property, if
the owner himself should become
possessed of it, he recovers his
ownership even over land in the
period of a year, by what is called
usureception or a recovery by
possession, because a previous
ownership is thereby recovered
by usucapion.
§ 60. The fiduciary alienee is
either a creditor holding the
property as a pledge or a friend
to whom the property is made
over for safe custody : in the
latter case the ownership is always
capable of usureception : but in
that of a creditor, though the
owner can always thus re-acquire
after payment of the debt, before
payment of the debt he can only
re-acquire provided he has not
obtained the thing of his creditor
on hire or got possession of it
by request and licence ; in this
case he re-acquires by a lucrative
usucapion.
§ 61. Again, the owner of a
thing mortgaged to the people and
sold for non-payment of the mort-
gage debt may re-acquire it by
possession, but in this case, if it
is land, usucapion is biennial :
and this is the meaning of the
saying, that after praediatura (a
public sale) land is recoverable
by (biennial) possession, a pur-
chaser from the people being called
praediator.
§§ 40, 41. Roman law originally only recognized one kind of
ownership, called emphatically, quiritary ownership. Gradually,
however, certain kinds of ownership were recognized which, though
they failed to satisfy all the elements of the definition of quiritary
dominion, were practically its equivalent, and received from the
courts a similar protection. These kinds of ownership might fall
§ 59. Adhuc etiam ex aliis
causis sciens quisque rem alie-
nam usucapit. cam qui rem
alicui fiduciae causa manciple
dederit uel in iure cesserit, si
eandem ipse possederit, potest
usucapere, anno scilicet,
{etiam} soli si sit. quae spe-
cies usucapionis dicitur usure-
ceptio, quia id quod aliquando
habuimus recipimus per usu-
capionem.
§ 60. Sec? fiducia contrahitur
aut cum creditore pignoris iure,
aut cum amico, quo tutius no-
strae res apud eum sint ; et
siquidem cum amico contracta
sit fiducia, sane omni modo
conpetit ususreceptio ; si uero
cum creditore, soluta quidem
pecunia omni modo conpetit,
nondum uero soluta ita demum
conpetit, si neque conduxerit
earn rem a creditore debitor,
neque precario rogauerit, ut
earn rem possidere liceret; quo
casu lucratiua ususcapio con-
petit.
§ 61. Item si rem obligatam
sibi populus uendiderit eamque
dominus possederit, concessa
est ususreceptio ; sed hoc casu
praedium biennio usurecipitur.
et hoc est quod uulgo dicitur
ex praediatura possessionem
usurecipi ; nam qui mercatur
a populo praediator appel-
152 DE ADQVIRENDO RERVM DOMINIO [n. §§40-61.
short of quiritary ownership in three respects, (i) either in respect
of the persons in whom they resided, (2) or of the objects to
which they related, (3) or of the title by which they were
acquired.
(1) To be capable of quiritary ownership a man must have one
of the elements of Roman citizenship. Jus quiritium, right
quiritary, sometimes, indeed, denotes all the elements of civitas
Romana, Roman citizenship (1 §§ 28, 35, comm.). Beneficio princi-
pal! Latinus civitatem Romanam accipit si ab imperatore jus
quiritium impetraverit, Ulpian 3, 2. But the only element of
citizenship required for quiritary ownership was commercium, and
as we have seen that the Latinus possessed commercium with-
out connubium, the Latinus was capable of quiritary dominion.
The alien (peregrinus) on the contrary was incapable, except by
special privilege : yet he might have ownership, which he acquired
by titles of jus gentium, e. g. tradition, occupation, accession, &c.,
and could maintain by a real action in the court of the praetor
peregrinus or praeses provinciae.
(2) Provincial land was not capable of quiritary ownership.
Originally, indeed, private ownership appears to have been confined
to things capable of being taken by the hand (mancipatae), that is
to movables ; and lands were only subject to public dominion or
were the common property of the gens. Private ownership, however,
first invaded a portion of the land, the heredium, or hereditary
homestead of the gentilis, and finally became a general institution ;
and ager publicus, as opposed to ager privatus, almost ceased to
exist on Italian soil. But in the provinces subsequently conquered,
land continued to the end subject exclusively to public dominion ;
and thus one of the essential features of feudal tenure, the exclusive
vesting of absolute or ultimate dominion over land in the sovereign
as overlord, a principle commonly supposed to have been first intro-
duced into Europe by the invading German hordes, had already
existed, though in a different form, over by far the greater portion
of the Roman world. It is true that the provinces were divided into
private possessions and public domains ; but private possessions as
well as public domains were subject to a vectigal, and the tenants of
the one and lessees of the other were equally devoid of absolute
ownership. Rights over solum provinciale of a more or less limited
kind were however acquirable, though not by titles of jus civile, and
recoverable by real action, for which Gaius uses the terms possessio
and ususfructus, § 7.
(3) Bonitary ownership was distinct both from an alien's ownership
and from rights over provincial land : it may be defined as the
property of a Roman citizen in a subject capable of quiritary
ii. §§40-61.] DE VSVCAPIONIBVS 153
ownership, acquired in a way not known to the jus civile, but
introduced by the praetor, and protected by his imperium or
executive power. We have seen, for instance, that only non-man-
cipable things were capable of transfer by tradition ; suppose, now,
that a mancipable thing were conveyed by the owner to a vendee
by tradition ; the process would not make him quiritary owner ;
he would be no better than a bona fide possessor, until by the
lapse of a year or of two years he acquired quiritary ownership by
usucapion. The praetor, however, assisted the less cumbrous mode
of alienation by treating the vendee as if he were owner ; by giving
him, if in possession, the exceptio rei venditae et traditae or plea
of sale and delivery against the vendor who sought to recover as
quiritary owner, and enabling the vendee, if dispossessed, to recover
against the quiritary owner as well as against any third person by
utilis vindicatio, called actio Publiciana, in which he would meet the
plea of quiritary ownership (exceptio dominii) by the replicatio rei
venditae et traditae or by the replicatio doli, a replication which could
not be used by a mere bona fide possessor. Bonitary ownership, or
ownership established by the praetor, when once invented, was
employed by the praetor in other innovations, which he introduced,
namely, as we shall see hereafter, in respect of res corporales of an
insolvent debtor transferred to a purchaser by universal succession
(bonorum venditio), and in respect of his testamentary and intestate
succession (bonorum possessio) : 3 § 80.
The barbarous term Bonitary (formed from the classical in bonis
esse, in bonis habere) has the authority of Theophilus, who speaks
of Sfo-norrjs ftuvirdpios, 1, 5, 4 ; he also calls bonitary ownership natural
dominion ((frwiKri bf<rnoT(ia), as opposed to statutory, civil, or quiri-
tary dominion ((wopos deo-TroTem).
Actio Publiciana was not only the remedy of the bonitary owner,
but was also applicable on the alienation of anything whatever by
a non -proprietor to an innocent alienee (bona fide possessor) in case
the latter lost possession of it.
Usucapion, as in the case of bonitary ownership, might in the lapse
of time have given the bona fide possessor plenary dominion, and, with
it, vindication in the event of a loss of possession ; but if he lost pos-
session whilst usucapion was still incomplete, he would have had no
real action (for, not being owner, he could not vindicate), if the
praetor had not allowed him to sue by the actio Publiciana, which
treated bona fide possession, that is, usucapion possession, or the
inception of usucapion, as if it were plenary dominion in respect of
every one, except the rightful owner. The latter, however, could
defend himself in this action successfully against a mere bona fide
possessor by the exceptio dominii, or bring a vindication against a
154 DE ADQVIRENDO RERVM DOMINIO [n.§§ 40-61.
bona fide possessor who retained possession, though, as we have seen,
the quiritary owner was not allowed to avail himself of these means
of protection against a person having a praetorian or bonitary title of
ownership.
§§ 52-60. An heres was either voluntarius, empowered to accept
or reject the inheritance, or necessarius, heir as matter of course,
without any such power of election. A voluntary heir was either
.in agnate entitled to succeed an intestate, or any heir, not being
a suus or necessarius heres of the testator, entitled under a will. A
necessary heir was either a slave of the testator manumitted by his
will, or a self-successor (suus heres), that is, a descendant under power
of the testator or intestate, made independent by his death, § 152. In
every case of voluntarius heres, so long as the heir had not entered
on the inheritance, any stranger was permitted to seize parts of it
and acquire property therein by usucapion. The only title (causa,
titulus) required for this acquisition was the overture or delation of the
inheritance to heres and vacancy of possession. This possession, which
Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is more properly called
pro possessore. Cf. 4 § 144. 'Possessor, as possessor, is the occupant,
who, asked why he possesses, answers, "Because I possess," and
does not claim to be heir even mendaciously, and has no title of
possession to allege.' But according to early Roman law any person
who was allowed by the voluntary heir to remain in possession of
the inheritance for a year was considered lawfully entitled to it as
heir, bona fides on the part of a possessor being at this time im-
material for the purpose of acquiring by usucapion (Muirhead,
Roman Law, § 32). The senatusconsultum of Hadrian, referred to
in the text, § 57, did not prevent the usucapion, but made it nugatoiy
by allowing the heir to recover the hereditaments by real action
(hereditatis petitio, or the interdict Quorum bonorum, 4 § 144), just
as if the usucapion had never been completed.
Though the occupant of the vacant hereditament was called
praedo, his possession, being encouraged by the lawgiver, was not
unlawful until restitution was claimed, Savigny, § 264. This pos-
session is probably the key to an enigmatical rule in Roman law :
ipsum sibi causam possessionis mutare non posse, Dig. 41, 3, 33, 1 ;
causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 1.
'No man can change at pleasure his title of possession.' With the
intention, it may be, of limiting the operation of possessio pro
herede, an anomalous institution of questionable expediency, the rule
declares that a person who commences his possession of a thing
in the character of a vendee from a non-proprietor, or holds it as
lessee, borrower, depositary, shall not be able, on the death of the
true proprietor, to accelerate or initiate usucapion by merely pro-
ii. §§40-61.] DE VSVCAPIONIBVS 155
fessing that he ceases to hold in his former character and proceeds
to hold as possessor pro herede or pro possessore.
Possessio pro herede was perhaps the germ of the intestate suc-
cession of next of kin or cognati, a succession, as we shall see, not
originally recognized in Eomau law ; at least, the family or next of
kin of an intestate would generally have the best chance of seizing
any movables or immovables that he left ; and perhaps it was this
equitable result, no less than the object mentioned by Gaius, § 55,
that, in the absence of a regular succession of cognati, led the public to
look on possessio pro possessore as a rational and salutary institution.
The senatuseonsultum mentioned in the text, § 57, is supposed by
some commentators to be the same as one mentioned in the Digest
(5, 3, 6), as having been passed at the instance of the Emperor
Hadrian, when Q. Julius Balbus and P. Juventius Celsus were
consuls, A. r>. 129 — hence called Sc. Juventianum. The institution
of usucapio pro herede and pro possessore, or rather the senatus-
eonsultum by which it was defeated, has left its traces in the formula,
still to be found in the Digest, of the interdict Quorum bonorum,
a remedy whereby a person who claimed either as civil heir (heres),
or as praetorian heir (bonorum possessor), established his claim to
succeed and recovered possession of the things belonging to the
inheritance. See 4 § 144. To leave these traces in the wording
of the interdict was according to Vangerow no oversight on the
part of Justinian, as although in his legislation the last remnants
of the institution of usucapio pro possessore, that is by a mala fide
possessor, had been definitely abolished ; yet usucapio pro herede, that
is, by a bona fide possessor, or one who sincerely though mistakenly
held himself to be heir, was still recognized by jurisprudence, § 320.
§ 60. For fiducia cum creditore see 1 § 114, comm., 3 §§ 90, 91,
comm. Mancipation to a friend on trust for safe custody must have
been the earliest legal form of deposit, as mancipation to a creditor
on trust to reconvey was the earliest mode of pledge or mortgage.
For precarium see 4 §§ 138-170, comm.
§ 61. The circumstances contemplated seem to be as follows:
A proprietor is debtor to the Roman people or state, and his lands
are mortgaged as security for the debt. On default of payment, the
state exercises the power of sale : if the debtor is not turned out of
possession by the purchaser (praediator) in two years he recovers his
proprietorship by usureception. It seems that the sale by the people
was merely the transfer of the mortgage ; so that, if the debtor
afterwards satisfied the purchaser, he recovered his land. Kuntze,
Excursus des Rom. Rechts, 436.
Provincial lands were not subject to Usucapion ; but a possessor
for ten years during the presence of the owner in the same province
156 DE ADQVIRENDO RERVM DOMINIO [n.§§ 40-61.
(inter praesentes), or for twenty years in his absence (inter absentes),
if he satisfied the conditions of usucapion, had, according to the
provincial edict, the plea called longi temporis praescriptio against
any action brought by the owner for recovery, and subsequently was
himself allowed to recover the land, as if he were owner of it, so
that longi temporis possessio became in later Roman law not simply
a limitation of the right of action, but a positive title analogous to
usucapion.
Usucapion required something beyond mere possession for a cer-
tain period ; and something beyond what we hereafter call Interdict
possession, 4 §§ 138-170. The conditions of possession which entitled
a possessor to appeal for the protection of his possession to the
praetor's interdict were merely that he should have de facto control
of the property, as if he were owner of it, all question of right or
title being immaterial : nor was a mala fide any more than a bona
fide possessor excluded from this protection, unless he had obtained
possession from the other party to the interdict by means of violence
(vi), or clandestinely (clam), or by his pel-mission (precario). But to
produce Usucapion (i) the person and thing to be acquired must be,
capable of quiritary ownership, and (2) it must not have been taken
by any one's theft or violence from the former owner, § 49 : so that
land not being subject to furtum was more easily acquired by
usucapion than movable property, § 50 ; (3) the possession of the
usucapient must be based on a justa causa or titulus, a ground of
acquiring ownership, such as tradition or bequest ; (4) and com-
menced with bona fides on his part, a condition which appears to
have been annexed to the law of the Twelve Tables by the inter-
pretation of the prudentes. Bona fides, in the case of titulus of
occupancy, which is an original mode of acquisition, e.g. usucapio
pro derelicto, is a mistaken belief that the thing is res nullius,
has no proprietor. In the case of derivative acquisition it is the
belief that the auctor, or person from whom the thing is derived, is
either owner or, if not owner, has a power of disposition as agent,
guardian, mortgagee, or otherwise. Vangerow, § 321. The Canon
law requires during the whole period of such prescription the bona
fides which the Civil law only requires at the inception.
Justinian remodelled the law of Usucapion, combining it with longi
temporis possessio. Cf. Inst. 2, 6. For movables he extended- the
period from one year to three years : for immovables he abolished the
distinction between Italian and provincial land, and required ten
years' possession if the parties were domiciled in the same province,
and twenty years' possession if they were not domiciled in the same
province. Further, he introduced a new usucapion (longissimi tem-
poris praescriptio), which was governed by less stringent conditions
ii. §§ 40-61.] DE VSVCAPIONIBVS 157
than the ordinary usucapion (longi temporis praescriptio). It applied
both to movables and immovables, was not vitiated by certain flaws
in the subject (res furtiva, vi possessa), and needed no support of
any titulus, but only required bona fides in its inception on the
part of the possessor, Cod. 7, 39, 8. It was completed in thirty
years.
Usucapion, particularly in this its later form, requires to be care-
fully distinguished from the Limitation of actions (temporalis prae-
scriptio) with which it has been co-ordinated by some civilians under
the name of Acquisitive, as opposed to Extinctive, Prescription. We
shall see, 4 § 110, that all actions were originally divided into tem-
porales and perpetuae, temporales being such as could only be brought
within a certain period (e.g. in the case of praetorian actions, a year)
from the time when the right of action accrued, perpetuae such as
were subject to no such limitation. Subsequently, however, even
the latter were limited, and no action could be brought after thirty
years from the nativity of the action or the time when the right of
action accrued (actio nata), Inst. 4, 12 pr. In the case of personal
actions there is no danger of confusing Usucapion and Limitation.
Usucapion implies possession, and in the case of personal actions,
or jus in personam, no such thing as possession is conceivable,
for possession only relates to res corporales. Usucapion and
the Limitation of real actions are more similar, but even here a
distinction may be recognized. Limitation is the extinction of a
right by neglect of the person entitled, by his omission to enforce
his remedy : Usucapion is the acquisition of a right by something
positive on the part of the acquirer, his strictly denned possession
for a certain time. Even extraordinary acquisitive- prescription
requires, as we have seen, bona fides in the commencement of pos-
session : no such condition is attached to Limitation or extinctive
prescription.
English law originally only recognized acquisitive prescription in the
case of easements and profits, e. g. rights of way ; for the acquisition of
which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession
for a fixed period. Moreover, since the Act for the limitation of real
actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his
right as well as his remedy if he omit to bring his action to recover
it within twenty years after the right accrued (a limit which by the
37 and 38 Viet. c. 57 was reduced to twelve years), the principle of
Usucapion (Acquisitive prescription) in corporeal as well as incor-
poreal hereditaments may be said to be now recognized in English
real property law, though not very distinctly.
Besides the civil titles which we have examined, two others are
mentioned by Ulpian : Singularum rerum dominia nobis adquiruntur
158 DE ADQVIRENDO RERVM DOMINIO [n. §§ 40-61.
mancipatione, traditione, in jure cessione, usucapione, adjudicatione,
lege, 19, 2.
Adjudication (for the nature of which see 4 § 42), whereby pro-
perty might be taken from one individual and vested in another
without any of the ordinary methods of conveyance, as in the
case of the award of a judex in a partition suit, may be com-
pared in its operation to the vesting orders made by the Court of
Chancery under the Trustee Acts. When trustees are disabled by
lunacy or infancy from dealing with the estates vested in them, the
Court of Chancery is empowered to make orders the effect of which
is that the estate becomes immediately vested in the substituted
trustees as effectually as if a conveyance had been duly made by the
person previously entitled to the legal estate. Another parallel is to
be found in the awards of certain commissioners acting under powers
given by act of parliament. Thus the order of the Inelosure com-
missioners for exchange and partition of land closely resembles in
subject and effect the adjudicatio of a judex n the actio finium
regundorum.
Lex is an ambiguous and miscellaneous title. It is said to include
title by caducity (caducum) under the lex Papia Poppaea, and bequest
or legacy (legatum), a title deriving its validity from the lex of the
Twelve Tables, Ulpian, 19, 17. Extending our view from res
singulae, to which Ulpian confines himself, to universitates, lex
was an apt denomination of title by will at the period when wills
required the ratification of the Cornitia Calata, 2 § 101, as at that
time testamentary dispositions were really acts of the legislature.
Title by lex in this case bears some kind of analogy to conveyances
by private act of parliament in English jurisprudence.
It may assist to clear our conception of title if we observe that
the title 'Lege' is ambiguous, and that (i) while one of its mean-
ings implies an absence of all title, (2) another denotes a miscella-
neous group of heterogeneous titles.
(i) The only case in which Law can be said in any distinctive
sense to be a cause of acquisition is privilegium or private law.
The acquisition of a right by immediate grant from the sovereign
(private act of the legislature, private act of parliament) is unlike
the acquisition of a person entitled under some general disposition
of a universal law. Acquisition by bequest or escheat is not an
acquisition by law in any pre-eminent manner, but only in the same
degree as is acquisition by mancipation or usucapion or any other
title, for all these acquisitions are equally founded on law or some legal
disposition of general application. But in acquisition by privilegium
there is, in this sense, neither title nor any general law. By a general
law is meant a universal proposition, annexing a right or duty to
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 159
a title : it knows nothing of individual persons, but stops short
at classes of persons, classes, that is, defined by the title. Again,
title is, properly speaking, a contingent fact distinct from a corre-
sponding law : a fact which may occur an indefinite number of
times, and entitle, that is, invest with rights or duties, an indefinite
number of persons, in accordance with the dispositions of one and
the same unchanging law. Title, loosely and inaccurately defined
as a fact investing a person with a right, would include a privilege,
i. e. a law conferring a right immediately on a given individual
without the intervention of a fact distinguishable from the law ;
but title, properly defined as an intervening fact through which
a law confers a right mediatel}T, excludes privilege.
Whenever there is a genuine title and a general law, the title is
interposed between the general right or duty and the particular person
therewith invested, just as the middle term is interposed between the
major and minor terms of a syllogism. E.g. All persons characterized
by the fact B are invested with the right or duty A : the individual
C is characterized by this fact B ; therefore this individual is invested
with the right or duty A. A genuine law is only the major premiss,
the proposition stating the general right or duty, all B is A. The
condition, represented by the middle term, which connects or dis-
connects the right or duty with a person is the title. In a privilegium
we have no such premisses and no such middle term. The invest-
ment of the particular individual C with a general right or duty
is not in this case possible, being unwarranted by any genuine title.
(2) In Bequest and loss of a bequest on account of caducity or
ereption there is a general law and a genuine title, but the law is not
the title, any more than it is in any other mode of acquisition.
Either because these modes include fewer voluntary acts than some
closely allied modes (for instance, the legatee may acquire ownership
of the property bequeathed to him without any act of acceptance on
his part), or, for some other reason, divers modes are lumped together
under the head of acquisition by lex. The name, however, besides
being a misnomer, is merely a sink or receptacle of miscellaneous
unrelated titles, just as we shall find in the doctrine of obligations
that miscellaneous titles (variae causarum figurae) are lumped
together under the denomination of quasi-contract. As to the
displacement in the MS. of §§ 62-64 see below, p. 163.
§ 65. Ergo ex his quae dixi- § 65. Thus it appears that some
mus apparet quaedam natural! modes of alienation are based on
-iure alienari, qualia aunt ea natural la\v, as tradition, and
quae traditione alienantur ; others on civil law, as mancipa-
t quaedam chilli, nam mancipa- tion> surrender before the magis-
160 DE ADQVIRENDO RERVM DOMINIC [n. §§65-79.
tionis et in iure cessionis et
usucapionis ius proprium est
ciuium Romanoruin.
Inst. 2,1,11.
§ 66. Nee tamen ea tantum,
quae traditione nostra fiunt, |
natural! nobis ratione adqui-
runtur, sed etiam — | occupando
ideo erimus, quio- antea nul-
li|us essent; qualia sunt om-
nia quae terra mart caelo
capiuntur.
§ 67. Itaque si /eram bes-
tiam aut uolucrem aut pis[-
cem captum | eo
usque nostrum esse intellegitur,
donee nostra custodia coer-
ceatur ; cum uero custodiam
nostram euaserit et in natu-
ralem libertatem se receperit,
rursus occupantis fit, quia no-
strum esse desinit ; naturalem
autem libertatem recipere uide-
tur, cum aut oculos nostros
euaserit, aut licet in conspectu
sit nostro, difficilis tamen eius
persecutio sit. Inst. 2, 1, J2.
§ 68. In his autem anima-
libus quae ex consuetudine ab-
ire et redire solent, ueluti co-
lumbis et apibus, item ceruis
qui in siluas ire et redire so-
lent, talem habemus regulam
traditam, ut si reuertendi ani-
mum habere desierint, etiam
nostra esse desinant et fiant
occupautium ; reuertendi autem
animum uidentur desinere ha-
bere, cum reuertendi consuetu-
dinem deseruerint.
Inst. 2, 1, 14.
§ 69. Ea quoque quae ex
hostibus capiuntur naturali
ratione nostra fiunt.
Inst. 2, 1, 17.
§ 70. Sed et id quod per ad-
luuionem nobis adicitur eodem
iure nostrum fit ; per adluuio-
trate. usucapion, for these are
titles confined to citizens of Eome.
§ 66. Another title of natural
reason, besides Tradition, is Occu-
pation, whereby things previously
the property of no one become
the property of the first occupant,
as the wild inhabitants of earth,
air, and water, as soon as they are
captured.
§ 67. For wild beasts, birds, and
fishes, as soon as they are captured,
become, by natural law, the pro-
perty of the captor, but only con-
tinue such so long as they con-
tinue in his power ; after breaking
from his custody and recovering
their natural liberty, they may
become the property of the next
occupant ; for the ownership of
the first captor is terminated.
Their natural liberty is deemed
to be recovered when they have
escaped from his sight, or, though
they continue in his sight, when
they are difficult to recapture.
§ 68. In the case of those wild
animals, however, which are in
the habit of going away and re-
turning, as pigeons, and bees,
and deer, which habitually visit
the forests and return, the rule
has been handed down, that only
the cessation of the intention' of
returning is the termination of
ownership, and then the property
in them is acquired by the next
occupant; the intention of return-
ing is held to be lost when the
habit of returning is discontinued.
§ 69. Capture from an enemy
is another title of property by
natural law.
§70. Alluvion is another natural
mode of acquisition. Alluvion is
an addition of soil to land by a
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 161
nem autem id uidetur adici
quod ita paulatim flumen agro
.nostro adicit, ut aestimare non
possimus quantum quoquo mo-
rn en to temporis adiciatur ; hoc
est quod uulgo dicitur per ad-
luuionem id adici uideri quod
ita paulatim adicitur, ut oculos
nostros fallat. Inst. 2, 1,20.
§ 71. Itaque si flumen partem
aliquam ex tuo praedio rescide-
rit et ad meum praedium per-
tulerit, haec pars tua manet.
Inst. 2,1,21.
§ 72. At si in medio flumine
insula nata sit, haec eorum
omnium commums est, qui
ab utraque parte fluminis prope
ripam praedia possiden£ ; si
uero non sit in medio flumine,
ad eos pertinet qui ab ea parte
quae proxima est iuxta ripam
praedia habent. Inst. 2, 1, 22.
§ 73. Praeterea id quod in
solo nostro ab aliquo aedifica-
tum est, quamuis ille suo no-
mine aedificauerit, iure naturali
nostrum fit, quia superficies
solo cedi£. Inst. 2, 1, 30.
§ 74. Multoque magis id ac-
cidit et in planta quam quis
in solo nostro posuerit, si mo-
do radicibus terrain conplexa
fuerit. Inst. 2, 1, 31.
§ 75. Idem contingit et in
/rumento, quod in solo nostro
ab aliquo satum fuerit.
Inst. 2, 1, 32.
§ 76. Sed si ab eo petamus
fundum uel aedificium et in-
pensas in aedificium uel in
seminaria uel in sementem
factas ei soluere nolimus, po-
terit nos per exceptionem doli
mali repellere, utique si bonae
fidei possessor fuerit.
Inst. 1. c.
river, so gradual that at a par-
ticular moment the amount of
accretion cannot be determined ;
or, to use the common expression,
an addition made by alluvion is
so gradual as to elude our sight.
§ 71. Accordingly a parcel of
your land swept away by a river,
and carried down to mine, con-
tinues your property.
§ 72. An island that rises in
the middle of a river is the com-
mon property of the proprietors
on both banks of the river ; if it
is not in the middle of the stream,
it belongs to the proprietors of
the nearer bank.
§ 73. Again, a building erected
on my soil, though the builder
has made it on his own account,
belongs to me by natural law ;
for the ownership of a super-
structure follows the ownership
of the soil.
§ 74. The same occurs a fortiori
when trees are planted on my land,
provided they have struck root.
§ 75. Similarly, when corn is
sown on my land.
§ 76. But if I bring an action
to recover the land or the build-
ing, and refuse to compensate the
other party for his outlay on the
building or the plantation or the
cornfield, he will defeat my action
by the plea of fraud, at any rate
if he was a bona fide possessor.
M
162 DE ADQVIRENDO RERVM DOMINIO [n. §§ 65-79.
§ 77. Eadem ratione pro-
batum est quod in chartulis
siue membranis meis aliquis
scripserit, licet aureis litteris,
meum esse, quia litterae char-
tulis siue membranis ceduntf.
itaque si ego eos libros easue
membranas petam nee inpen-
sam seripturae soluam, per ex-
ceptionem doli mali summoueri
potero. Inst. 2, 1, 33.
§ 78. Sed si in tabula mea
aliquis pinxerit ueluti ^magi-
nem, contra probatur ; magis
enim dicitur tabulam picturae
cedere. cuius diuersitatis uix
idonea ratio redditur; certe
secundum hanc regularn si me
possidente petas imaginem
tuam esse, nee soluas pretium
tabulae, poteris per excep-
tionem doli mali summoueri ;
at si tu possideas, consequens
est, ut utilis mihi actio aduer-
sum te dari debeat ; quo casu
nisi soluam inpensam picturae,
poteris me per exceptionem doli
mali repellere, utique si bonae
fidei possessor fueris. illud
palam est, quod siue tu sub-
ripuer^s tabulam siue alius,
conpetit mihi furti actio.
Inst. 2, 1,34.
§ 79. In aliis quoque specie-
bus naturalis ratio requiritur.
proincfe si ex uuis (aut oliuis
aut spicis} meis uinum aut
oleum aut frumentum feceris,
quaeritur utrum meum sit id
uinum aut oleum aut frumen-
tum, an tuum. item si ex auro
aut ar^rento meo uas aliquod
feceris, uel ex tabulis meis
nauem aut armarium aut sub-
sellium fabricaueris ; item si
ex lana mea uestimentum fece-
ris, uel si ex uino et melle meo
mulsum feceris, siue ex medi-
§ 77. On the same principle,
the writing inscribed on my
paper or parchment, even in
letters of gold, becomes mine,
for the property in the letters is
accessory to the paper or parch-
ment ; but if I sue for the books
or parchment without offering
compensation for the writing, my
action will be defeated by the
plea of fraud.
§ 78. The canvas belonging to
me, on which another man has
painted, e. g. a portrait, is sub-
ject to a different rule, for the
ownership of the canvas is held
to be accessory to the painting:
a difference which scarcely rests
on a sufficient reason. By this
rule, it is clear that if I am in
possession, and you (the painter)
claim the portrait without offering
to pay the value of the canvas, I
may defeat your claim by the plea
of fraud. But if you are in posses-
sion, the effect is that I am entitled
to an equitable action against you,
but in this case unless I offer the
price of the painting, you defeat
me by the plea of fraud, at any
rate if you are a bona fide pos-
sessor. It is certain, that, if either
you or another purloined the can-
vas, I can bring an action of theft.
§ 79. On a change of species,
also, we have recourse to natural
law to determine the proprietor.
Thus, if grapes, or olives, or
sheaves of corn, belonging to me.
are converted by another into
wine, or oil, or (threshed out)
corn, a question arises whether
the property in the corn, wine,
or oil, is in me, or in the author
of the conversion ; so too if my
gold or silver is manufactured
into a vessel, or a ship, chest, or
chair is constructed from my
timber, or my wool is made into
clothing, or my wine and honey
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 163
camentis meis emplastrum uel
collyrium feceris, (quaeritur,
utrum tuum sit id quod ex meo
effeceris,y an meum. quidam
materiam et substantiam spec-
tandam esse putant, id est
ut cuius materia sit, illius et res
quae facta sit uideatur esse, id-
que maxime placuit Sabino et
(Jassio. alii uero eius rem esse
putant qui fecerit, idque ma-
xime diuersae scholaeauctoribus
uisum est; sed eum quoque cuius
materia et substantia fuerit
furti aduersus eum qui subri-
puerit habere actionem ; nee
minus aduersus eundem con-
dictionem ei conpetere, quiet
extinctae res, licet uindicari
non possmt, condici tamen f uri-
bus et quibusdam aliis posses-
soribus possunt.
Inst. 2, 1, 25.
are made into mead, or my drugs
into a plaster or eye-salve, it be*
comes a question whether the
ownership of the new product is
vested in me or in the manu-
facturer. According to some, the
material or substance is the crite-
rion ; that is to say, the owner
of the material is to be deemed
the owner of the product ; and
this was the doctrine which com-
mended itself to Sabinus and
Cassius ; according to others the
ownership of the product is in the
manufacturer, and this was the
doctrine favoured by the opposite
school ; who further held that
the owner of the substance or
material could maintain an action
of theft against the purloiner, and
also an action for damages (con-
dictio), because, though the pro-
perty which is destroyed cannot
be vindicated, this is no bar to
a condictio or personal action for
damages against the thief and
against certain other possessors.
QVIBVS ALIENAKE LICEAT VEL NON.
§ 62. Accidit aliquando, ut
qui dominus sit alienandae rei
potestatem non habeat, et qui
dominus non sit a££enare pos-
sit. Inst. 2, 8 pr.
§ 63. Nam dotale praedium
maritus inuita muliere per le-
gem luliam prohibetur alienare,
quamuis ipsius sit uel manci-
patum ei dotis causa uel in iure
cessum uel usucaptum. quod
quidem ius utrum ad Italica
tantum praecZia an etiam ad
prouincialia pertineat, dubi-
tatur. Inst. 1. c.
§ 64. Ex diuerso agnatus fu-
riosi curator rem furio|si alie-
nare potest ex lege xn tabula-
rum ; item procurator — |
§ 62. It sometimes occurs that
an owner has not a power of
alienation, and that a person who
is not owner has a power of
alienation.
§ 63. The alienation of dower
land by the husband, without the
consent of the wife, is prohibited
by the lex Julia, although the
husband has become owner of the
land by its mancipation to him
as dower, or by its surrender to
him before a magistrate, or by
his usucapion of it. Whether this
disability is confined to Italian
soil, or extends to the provinces,
authorities differ.
§ 64. Contrariwise, an agnate, as
a lunatic's curator, is empowered
to aliene the lunatic's property by
the law of the Twelve Tables;
M a
164 DE ADQVIRENDO RERVM DOMINIO [n. §§ 65-79.
est ; item creditor pignus ex | and so is a procurator that of his
pactione, quamuis eius ea res principal (when invested by his
non sit. sed hoc forsitan ideo principal with free power of ad-
uideatur fieri, quod uoluntate ministration: Inst. 2, 1, 43).
debitoris intellegitur pignus Again, a pledgee, in pursuance
alienari, qui olim pactus est, ut of a P** authorizing him to sell,
liceret creditor! pignus uendere, ma^ »hene the f^*"0**,?!*
si pecunia non soluatur. Jf not owner °,f ^e thing ; this,
T <• 2 8 1 however, may be said to rest on
s ' ' ' ' the assent of the pledger pre-
viously given in the agreement
which empowered the pledgee to
sell in default of payment.
§ 65. Tradition or transfer of possession, as we have seen, was
a natural mode of transferring ownership in such non-mancipable
things as were corporeal : in mancipable things it could only transfer
bonitary ownership. The nature of this conveyance, which belongs
to jus gentium, has been fully explained above, §§14 a-27, comm.
Fructus or produce of a thing, when they become distinct entities,
l>elong to the owner of the principal thing, unless specially acquired
from him by some one else. They may be so acquired by transfer, in
which case one act of assent may suffice as the antecedent to many
acts of prehension ; for instance, in the gathering (perceptio) of fruits
by a usufructuary. Here the taking them occurs from time to time ;
the will or intention of the owner of the principal thing was mani-
fested once for all when he created the usufruct. But in the case of
a hirer of land by mere contract (colonus) a special tradition of the
fructus by the owner in each particular case of acquisition is required.
Thus if the fructus are res nee mancipi, perception of them, with the
consent of the owner, gives him ownership : if they are res mancipi,
bona fide possession, which usucapio will ripen into ownership.
Mere severance (separatio) of fruits (fructus) from the soil or parent
substance, without any act of appropriation (perceptio), gives to the
bona fide possessor, according to Savigny, Besitz, 22 a, bona fide
possession, which will be transformed into ownership by usucapion :
according to Vangerow, § 326, it gives him immediate and plenary
ownership. Windscheid, Pandekten, § 186, notes 11 and 12, takes an
intermediate position. Cf. Inst. Just. 2, 1, 35.
If the true owner recovers his land or cattle by vindicatio, the
judex will compel a bona fide possessor who is defendant to restore
the unconsumed fruits (fructus extantes) but not to make compensa-
tion for the consumed fruits (fructus consumpti). The mala fide
possessor, on the contrary, acquires no property in the consumed
fruits, but is compelled either by the vindicatio by which the principal
thing is recovered or by a separate personal action (condictio) to
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 165
restore their value ; he may likewise be compelled to restore the fructus
extantes either by the principal vindicatio or by a separate vindicatio.
He can be sued for the value of the fruits he has neglected to gather
(fructus neglecti) only in the principal vindicatio : their non-existence
prevents his being sued for them in a separate vindicatio ; and the
fact that he is not enriched by them prevents his being sued for
them in a separate condictio, Savigny, System, § 267.
§§ 66-69. Occupation gives property in a thing which previously
has no owner. Quod enim ante nullius est, id naturali ratione
occupanti conceditur, Inst. 2, 1. 12. If a thing had already an
owner, it is only after dereliction by him that it can be appropriated
by occupation. Dereliction, or renunciation of ownership, requires
both the intention to abandon it and an external action. Thus the
casting overboard of articles in a tempest to lighten a ship is not
dereliction, as there is no intention of abandoning the property in
the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of
abandonment constitute dereliction of ownership without a throwing
away or removal or some other external act ; and herein dereliction of
ownership differs from dereliction of possession, which does not require
this second element. Differentia inter dominium et possessionem
haec est, quod dominium nihilo minus ejus manet qui dominus esse non
vult, possessio autem recedit ut quisque constituit nolle possidere,
Dig. 41, 2, 17. 'There is this difference between ownership and posses-
sion, that ownership continues after the will to own has ceased,
whereas possession ceases with the cessation- of the will to possess.'
§ 68. Among wild animals (ferae naturae) a distinction is to be
drawn. In those of them that are half tamed (mansuefactae), among
which are mentioned deer, peacocks, pigeons, bees, property is not
limited by strict detention, as in other wild animals, but by animus
revertendi. A migrating swarm (examen) of bees, accordingly,
would only continue to belong to the owner of the hive as long as
it continues in his sight and is easy to recapture, as it has no
intention of returning. In tame animals, e.g. dogs or geese, the
rights of the owner are not extinguished by their straying without
an intention to return. Inst. 2, 1, 12-16.
§§ 76-79. The intimate conjunction of two things, so that they
are no longer separable and restorable to their former condition,
may produce a transmutation of ownership. A separable junction,
as when two flocks of sheep are intermingled, or when a stone is
set in a ring, or when two metals are soldered together (plumbatura),
or when the grain of one man is mixed with that of another, apart
from an agreement to share in common, produces no change of
ownership. In one case, however, namely, when material has been
used in building a house on another man's land, although the pro-
166 DE ADQVJRENDO KERVM DOMINIO [n. §§ 65-79.
perty of the owner of the material continues, it is in a dormant
state since he cannot, so long as it is fixed to the land, vindicate
it, 'quia superficies solo cedit,' § 73. The Twelve Tables, however,
allowed him the actio de tigno juncto to recover double the value.
An inseparable union sometimes produces co-ownership in the
whole (communio), sometimes the exclusive ownership of one of
the parties (accessio).
When two things belonging to different owners are mixed but
neither produce a new species, nor the relation of principal and
accessory, e. g. when two similar wines or metals are mixed ; or
when a new species is produced with the consent of both owners,
as when mead is produced by mixing honey and wine, electrum by
mixing gold and silver ; then each owner loses his separate owner-
ship of a part, and becomes joint owner of the whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the consent
of the other, then, according to the law as settled by Justinian, the
exclusive ownership is vested in the producer, and the other can only
obtain redress by actio in personam for the loss of his ownership.
Further, when the mixture establishes the relation of principal
and accessory, that is, when one thing loses its independent exis-
tence and becomes a part of the other (accessio), then the ownership
in the whole is vested 'in the owner of the dominant part, acces-
sorium sequitur principale ; cf. Dig. 6, 1, 23 Si quis rei suae alienam
rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae
bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique
recte dicunt. It will sometimes be a question which part is to be
regarded as principal and which as accessory, and the solution
does not depend on their comparative value. The Eoman jurists
themselves differ sometimes, as is shown in the text, in their
application of the principle of accession, but the principle itself
seems to be that the part which maintains its previous identity
and gives the dominating character to the entire thing is principal,
while the part which is merged in the other and so ceases to have
an independent existence, is accessory, as e. g. trees of one person
planted and taking root in the land of another, are thereby entirely
incorporated in the land. So again, a fresco painted by one person
on a wall belonging to another is evidently something accessory to
the wall. The case of an independent picture is a subject of dispute
in this relation. Gaius, § 78, appears to think that it ought to be
governed by the analogy of a manuscript, where the property in the
writing follows the property in the paper, § 77. It may be said,
however, that the principle of accession does not properly apply to
a picture or to a manuscript of literary value, since they are new
creations, differing in character from the materials in which they
ii. §§ 65-79.] ADQVISITIONES DOMINII NATVRALES 167
are embodied. It was indeed finally settled by Justinian that the
property in the picture belonged to the painter, though the latter
would be bound, as in similar cases, to make good the loss suffered by
the previous owner of the canvas. Inst, 2, 1, 34, cf. Sohm. § 64 n.
The remedy of the ex-proprietor of the accessory is utilis actio,
§ 78. This appears to be a real action (utilis in rem actio), which,
as a real action implies that the plaintiff is owner, seems to mean
a Fictitious action, 4 § 34, i. e. one whose formula feigns that the
property was never divested by Accession. This may be what
Gaius means by utilis actio.
§ 79. Specification or conversion by labour of something so as to
constitute a new thing is a title which cannot without violence be
brought under either Occupatio or Accessio. Here one person con-
tributes only his labour, whereby he transforms the material or
materials belonging to another into a new product (nova species).
The Sabinians held that the product belonged (by Accessio?) to
the owner of the material, the Proculians (by Occupatio?) to the
producer of the specification or conversion. Justinian adopts an
intermediate opinion, which Gaius mentions, Dig. 41, 1,7, 7, cf. Inst.
2, 1, 25, that the product belongs to the producer, provided that
it cannot be reduced to its original substance, while if it can be it
belongs to the owner of that substance ; e. g. a gold or silver vessel
belongs to the owner of the gold or silver out of which it was made :
and provided further that the change is a genuine fabrication or
manufacture ; for instance, the mere thrashing out of corn is not
sufficient to change the ownership, and therefore the corn belongs
to the owner of the sheaves, cf. § 79 : and the mere dyeing of wool
operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to ownership which
have been considered the proper position of Specification is open to
controversy, but it would seem that it should be regarded as a dis-
tinct and original mode of acquisition,
Acquisition is either Derivative, that is derived by Succession from
some one else, or Original, arising independently of any one else.
Derivative acquisition depends on (i) the will of the previous
owner (alienatio, testatio), (2) the disposition of a magistrate
or judex (adjudication, addiction, execution), or (3) a direct
disposition of law (intestate succession, caducity, forfeiture).
Original acquisition is either independent of Possession or
depends on Possession.
Original acquisition independent of Possession is either the
effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio
168 DE ADQVIRENDO EERVM DOMINIO [n. §§ 65-79.
fructuum, which confers property in the fruits on the
owner of the principal thing, or on the bona fide possessor
of it, or on the emphyteuta.
Conjunction is either the conjunction of equal with equal
or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Confusio,
which produces communio or co-proprietorship.
The conjunction of accessory with principal is either of
immovable with immovable, instanced in Alluvio :
or of movable with immovable, instanced in Satio,
Plantatio, Inaedificatio :
or of movable with movable, instanced in Scriptura,
Pictura.
Original acquisition dependent on Possession is either further
dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further
dependent on Time is seen in Usucapio and Praescriptio
longi temporis, when this latter became an acquisitive and
not simply an extinctive title.
Original acquisition dependent on Possession but inde-
pendent of Time is seen in Occupatio, or taking possession
of a res nullius, including Captio ferarum, Captio hostilis,
Inventio derelicti, Inventio thesauri.
§§ 62-64. It is conjectured that by some accidental displacement
these three paragraphs have been transposed, and that in their
proper order they should follow § 61. There seems no good reason
why they should be interposed between the titles of civil law and
the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the husband
to aliene the dotal land, with the consent of the wife, but prohibited
its hypothecation, even with her consent. Justinian extended the
prohibition to provincial soil, and to alienation with the wife's
consent, Inst. 2, 8, pr.
In the time of the jurist Javolenus, who flourished under Trajan
and Hadrian, and still probably in that of Gaius, the power of sale
of a pledge, § 64, was what is known in later jurisprudence as
accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where
by an omission of the compilers the law is not brought up to date.
But in later law, as early at least as the time of Ulpian it had become
a necessary consequence of the transaction — essentiale negotii — so
that a contrary agreement is inoperative, except that it imposes a
necessity of three denunciations or demands of payment, Dig. 13, 7, 4.
ii. §§ 80-85.] PVPILLORVM ALIENATIO
169
DE PVPILLIS AN ALTQVID A SE
ALIENAKE POSSVNT.
§ 80. Nunc admonendi sumus
neque feminam neque pupillum
sine tutoris auctoritate rem
mancipi alienare posse ; nee
mancipi uero feminam quidem
posse, pupillum non posse.
Inst. 2, 8, 2.
§ 81. Ideoque si quando mu-
lier mutuam pecuniam alicui
sine tutoris auctoritate dederit,
quia facit earn accipientis, cum
scilicet joecunia res nee man-
cipi sit, contrahit obligationem.
Inst. 1. c.
§ 82. At si pupillus idem
fecerit, | quia non facit acci-
pientis s , nullam | contra-
hit obligationem ; unde pupil-
lus uindicare quidem nummos
suos potest, sicubi extent, id |
est eos £>etere 8uos ex iure
Quiritium esse-
tere potest s-
tere.
repe-
unde
de pupillo quidem quaeritur,
an num — | — quos mutuos dedit,
ab eo qui accepit, -
actione eos persequi possit,
quoniam — [ potest.
Inst. 1. c.
§ 83. At ex contrario omnes
res tarn mancipi quam nee
mancipi mulieribus et pupillis
sine tutoris auctoritate solui
possunt, quoniam meliorem
condicionem suam facere eis
etiam sine tutoris auctoritate
concessum est.
§ 84. Itaque si debitor pecu-
niam pupillo soluat, facit qui-
dem pecuniam pupilli, sed ipse
non Hberatur, quia nullam ob-
ligationem pupillus sine tutoris
auctoritate dissoluere potest,
quia nullius rei alienatio ei sine
WHETHER WARDS CAN
ALIENE.
§ 80. We must next observe,
that neither a woman nor a ward
(pupillus) can aliene a manci-
pable thing without their guar-
dian's sanction : nor can a ward
even aliene a non-mancipable
thing without such sanction,
though a woman can.
§ 81. Thus a woman lending
money without the guardian's
sanction passes the property
therein to the borrower, money
being a non-mancipable thing,
and so imposes a contractual
obligation on the borrower.
§ 82. But a ward lending money
without his guardian's sanction
does not pass the property, and so
does not impose a contractual
obligation on the borrower, he can
therefore recover back the money,
if it exists, by vindication, that is,
by claiming it as quiritary owner ;
whereas a woman can only bring
a personal action of debt. Whether
a ward can maintain an action
against the borrower in case the
money has been spent by him,
is a subject of controversy, for a
ward can acquire a right of action
against a person without the
sanction of his guardian.
§ 83. On the contrary, both
mancipable and non-mancipable
things can be conveyed to women
and to wards without their guar-
dian's sanction, because they do
not require his sanction to better
their position.
§ 84. Accordingly, a debtor
who pays money to a ward passes
the property therein to the ward,
but is not discharged of his obliga-
tion, because a ward cannot re-
lease a debtor from any liability
without his guardian's sanction, as
170 DE ADQVIRENDO RERVM DOMINIO [n.§§ 86-96.
tutoris auctoritate concessa est;
sed tamen si ex ea pecunia locu-
pletior factus sit et adhuc petat,
per exceptionem doli mail sum-
moueri potest. Inst. 1. c.
§ 85. Mulieri uero etiam sine
tutoris auctoritate recte solui
potest ; nam qui soluit, libera-
tur obliga£ione, quia res nee
mancipi, ut proxime diximus,
a se dimittere mulieres etiam
sine tutoris auctoritate possunt.
quamquam hoc ita est, si acci-
piat pecuniam ; at si non ac-
cipiat, sed habere se dicat et
per acceptilationem uelit debi-
torem sine tutoris auctoritate
Hberare, non potest. Inst. 1. c.
without such sanction he cannot
part with any right: if, however,
he is profiting by the money, and
yet demands further payment, be
may be barred by the plea of
fraud.
§ 85. A woman may be law-
fully paid without her guardian's
sanction, and the payer is dis-
charged of liability, because, as
we have just mentioned, a woman
does not need her guardian's
sanction for the alienation of a
non-mancipable thing, provided
always that she receives actual
payment : for if she is not actually
paid, she cannot formally release
her debtor by acceptation (3
§ 169) unless with her guardian's
sanction.
§ 80, cf. 1, §§ 142-154, comm., 189-193.
§§81, 82. For mutuum, see 3 § 90. If the money delivered by
a ward could be traced it was recoverable from any one by real
action (vindicatio) : if it had been consumed in bona fides a personal
action, condictio certi, would probably lie against the borrower to
recover an equivalent sum : if jt had been consumed in mala fides
a personal action, ad exhibendum, would lie to recover an equivalent
sum and damages, Inst. 2, 8, 2.
§ 85. The pupilage of women after attaining the age of twelve,
i. e. the age of puberty, had become obsolete before the time of
Justinian, and with it their incapacities of alienation.
§ 86. Adquiritur autem nobis
non solum per nosmet ipsos,
sed etiam per eos quos in po-
testate manu mancipioue habe-
mus ; item per eos seruos in
quibus usum/ruc^um habe-
mus ; item per homines liberos
et seruos alienos quos bona
fide possidemus. de quibus
singulis diligenter despiciamus,
Inst. 2, 9 pr.
§ 87. Igitur (quod) liberi
nostri quos in potestate habe-
mus, item quod serui nostri
mancipio accipiunt uel ex tra-
§ 86. We may acquire property
not only by our own acts but
also by the acts of persons in
our power, hand, or mancipium ;
further, by slaves in whom we
have a usufruct ; further, by free-
men or another's slave of whom
we are bona fide possessors ; let
us now examine these cases in
detail.
§ 87. The rights of property
which children under power or
slaves acquire by mancipation or
tradition, or claims they acquire
ii. §§86-96.] PER QVAS PERSONAS ADQVIRATVR 171
ditione nanciscuntur, siue quid
stipulentur, uel ex aliqualibet
causa adquirunt, id nobis ad-
quiritur; ipge enim qui in po-
testate nostra est nihil suum
habere potest. et ideo si beres
institutus sit, nisi nostro iussu
hereditatein adire non potest ;
et si iuberttibus nobis adierit,
hereditas nobis adquiritur pro-
inde atque si nos ipsi heredes
instituti essemus; et eonuenien-
ter scilicet legatum per eos no-
bis adquiritur. Inst. 2, 9, 3.
§ 88. Dum tamen sciamus,
si alterius in bonis sit seruus,
alterius ex iure Quiritium, ex
omnibus causis ei soli per eum
adquiri cuius in bonis est.
§ 89. Non solum autem pro-
prietas per eos quos in potestate
habemus adquiritur nobis, sed
etiam possessio ; cuius enim rei
possession em adepti fuerint, id
nos possidere uidemur; unde
etiam per eos usucapio pro-
cedit. Inst. 1. c,
§ 90. Per eas uero personas
quas in manu mancipioue habe-
nius proprietas quidem adqui-
ritur nobis ex omnibus causis,
sicut per eos qui in potestate
nostra sunt; an autem possessio
adquiratur, quaeri solet, quia
ipsas non possidemus.
§ 91. De his autem seruis in
quibus tantum usumfructum
habemus ita placuit, ut quid-
quid ex re nostra uel ex operis
suis adquirant, id nobis adqui-
ratur; quod uero extra eas
causas, id ad dominum pro-
prietatis pertineat. itaque si
iste seruus heres institutus sit
legatumue quod ei datum fue-
by stipulation, or by any other
title, are acquired for their supe-
rior ; for a person subject to power
is incapable of holding property,
accordingly if instituted heir he
must have the command of his
superior to be capable of accepting
the inheritance, and if he has the
command of the superior and
accepts the inheritance, it is
acquired for the superior just as
if the latter had himself been in-
stituted heir : and the rule that it is
the superior who acquires applies
equally in the case of a legacy.
§ 88. But it is to be noticed
that when one man is bonitary
owner of a slave and another
quiritary owner, whatever the
mode of acquisition, it enures
exclusively to the bonitary
owner.
§ 89. Not only ownership is
acquired for the superior but also
possession, for the possession of
the inferior is deemed to be the
possession of the superior, and
thus the former is to the latter
an instrument of acquiring by
usucapion,
§ 90. Persons in the hand or
mancipation of a superior acquire
ownership for him by all modes
of acquisition just as children or
slaves in his power ; whether they
acquire possession for him is a
controversy, as they are not them-
selves in his possession.
§91. Respecting slaves in whom
a person has only a usufruct, the
rule is, that what they acquire
by means of the property of the
usufructuary or by their own
labour is acquired for the usu-
fructuary ; but what they acquire
by any other means belongs to
their proprietor. According!}7",
if such a slave is instituted heir
or made legatee, the inheritance or
172 DE ADQVIRENDO RERVM DOMINIO [IT. §§ 86-96.
rit, non mihi sed domino pro-
prietatis adquiritur.
Inst. 2, 9, 4.
§ 92. Idem placet de eo qui
a nobis bona fide possidetur,
siue liber sit siue alienus ser-
uus. quod enim placuit de
usufructuario, idem probatur
etiam de bonae fidei possessore.
itaque quod extra duas istas
causas adquiritur, id uel ad ip-
sum pertinet, si liber est, uel ad
donrinum, si seruus eat.
Inst. 1. c.
§ 93. SecZ bonae fidei posses-
sor cum usuceperit seruum, quia
eo modo dominus fit, ex omni
causa per eum sibi adquirere
potest. usufructuarius uero
usucapere non potest : primum
quia non possidet, sed habet
ius utendi [et] fruendi ; deinde
quia scit alienum seruum esse.
Inst. 1. c.
§ 94. De illo quaeritur, an
per eum seruum in quo usum-
fructum habemus possidere ali-
quam rem et usucapere possi-
mus, quia ipsum non possidemus.
per eum uero quern bona fide
possidemus sine dubio et possi-
dere et usucapere possumus.
loquimur autem in utriusque
persona secundum definitionem
quam proxime exposuimus, id
est si quid ex re nostra uel ex
operis suis adquirant [id nobis
adquiritur]. Inst. I.e.
§ 95. Ex his apparet per li-
beros homines quos neque iuri
nostro subiectos habemus neque
bona fide possidemus, item per
alienos seruos, in quibus neque
usumfructum habemus neque
iustam possessionem, nulla ex
causa nobis adquiri posse, et
legacy is acquired, not for the
usufructuary, but for the owner.
§ 92. The possessor in good
faith of a freeman or a slave
belonging to another is held to
have the same rights as a usu-
fructuary ; what they acquire on
any other account than the two
we mentioned, belonging in the
one case to the freeman himself in
the other to the rightful owner.
§ 93. But after a possessor in
good faith has acquired the owner-
ship of a slave by usucapioii, since
he has thus become owner of him,
all acquisitions by the slave enure
to his benefit. A usufructuary
cannot acquire a slave by usuea-
pion, for, in the first place, he has
not possession, but only a right
of usufruct ; and in the second
place, he knows that the slave
belongs to some one else.
§ 94. It is a question whether
a slave can be an instrument of
possession and usucapion for a
usufructuary, the slave not being
himself in his possession. A slave,
undoubtedly, can be the instru-
ment of possession and usucapion
for a bona fide possessor. Both
cases are subject to the limitation
made above as to things acquired
by the slave by means of the
usufructuary's property or by his
own labour.
§ 95. It appears that freemen
not subject to my power nor in
my bona fide possession, and
slaves of other people of whom
I am neither usufructuary nor
lawful possessor, cannot under
any circumstances be instruments
of acquiring for me, and this is
ii. §§86-96.] PER QVAS PERSONAS ADQVIRATVR 173
hoc est quod uulgo dicitur per the import of the dictum that
extraneam personain nobis ad- a stranger to the family cannot
quiri non posse, tantum de be an instrument in the acquisi-
possessione quaeritur, an < per tion of anything; only in respect
extraneam} perwmam nobis of possession there is a contro-
adquiratur. Inst. 2, 9, 5. ™sj as to whether it cannot be
acquired through a stranger.
§ 96. In summa sciendum § 96. Finally, it is to be ob-
est his qui in potestate manu served that persons under power,
mancipioue sunt nihil in iure in hand, or in mancipium, cannot
cedi posse ; cum enim istarum acquire by surrender before a
personarum nihil suum esse magistrate, for, as nothing can
possit, conueniews est scilicet, belong to such persons, it follows
ut nihil suum esse in iure uindi- that the7 cannot vindicate any-
care possint. ^8 as their own before a **&'
strate.
§ 87. Manus and mancipium had ceased to exist before the time
of Justinian, and patria potestas was much reduced. The gradual
steps by which filiusfamilias acquired an independent proprietary
position have been already described, 1 § 55, comm. The reduction
of patria potestas, and the abolition of the dependent law of Agnation,
may be almost regarded (so fundamental were these institutions in
jus civile) as the abrogation of the jus civile, and the substitution
in its stead of what the Komans called jus gentium.
§ 88. The power of acquiring by the acts of a slave and the power
of manumission, so as to make a slave Latinus, accompany Bonitary,
not Quiritary, ownership, where these are separated, 1 §§ 35, 54,
3 § 166.
§ 90. It is to be noticed, as Professor Muirhead points out in his
note to this passage, that no reason is given for making a distinction
between persons in manu mancipiove and nliifamilias and slaves in
respect of the acquiring possession for their superior.
§ 94. Dig. 41, 2, 1, 8 Per eum, in quo usumfructum habemus,
possidere possumus, sicut ex operis suis adquirere nobis solet, nee ad
rem pertinet, quod ipsum non possidemus : nam nee filium.
§ 95. All Dispositions or modes of conferring either rights against
one (jus in personam), or rights against the world (jus in rem), are
divisible, as we have before mentioned, into two parcels ; an essential
portion, some mental or internal act, the Intention of the parties ;
and an evidentiary portion, the Execution of this intention, its
incorporation in some overt act. Can these elements of title be
contributed by different persons? Can the Intention of disposing,
that is, of acquiring or aliening, reside in one, and can its Execution,
its external manifestation, be delegated to a representative?
Originally, that is, under the ancient civil law, representation was
174 DE ADQVIRENDO RERVM DOMINIO [n. §§ 86-96.
only admitted when the representative was in an inferior status to
the principal, was his slave, or subject to his potestas, manus, or
mancipium, § 95. . This limitation was found to be inconvenient,
when, in the progress of Roman conquest, Roman citizens became
proprietors in remote parts of the world ; and Possession was
allowed to be acquirable by the instrumentality of extranea persona,
that is, of a person who stood in no relation of inferiority to the
acquirer, which though a doubtful point in the time of Gaius, was
finally settled by a constitution of the Emperor Severus. In a civil
solemnity, like mancipation, a man could not be represented by an
independent agent ; but when the transfer of possession (traditio)
became a mode and ultimately the universal mode of transferring
dominion, it followed that Ownership (dominium), as well as Possession,
could be acquired by the agency of libera persona, if the person making
traditio of a thing to the agent was himself owner of it, Inst. 2, 5.
The acquisition of Obligations or personal rights by brokerage of
an independent agent was less perfectly developed. In fact Roman
law adhered throughout its history to the rule that an agent could only
contract rights for himself and not for his principal, though means
were taken to circumvent this restriction as far as possible. The
process employed for this purpose was a duplication of the relation of
agency (mandatum). A as principal (dominus) appointed B his agent
(procurator). B then contracted with a third party in his own name,
and, in order to transfer the benefit of his contract to A, he ceded
to him his right of action, that is to say, B, as principal, in his turn
made A his agent (procurator in rem suam), whereby A was able to
sue in the name of B, and obtain judgement on his own account.
Finally, the praetor allowed the principal to sue immediately, with-
out an express mandate, if intention to assign was shown, by bringing
a utilis actio, 3 § 163, comm.
§ 96. We might have expected that, as those subject to potestas
can acquire for their superiors by Mancipatio, § 87, so they could also
acquire by In jure cessio, especially as the same form of words —
Hunc ego hominem ex jure Quiritium meum esse aio — was used in
Mancipatio, 1 § 119, and in Vindicatio, 4 § 16. It seems, however, that
in Mancipatio the formula could be changed to Hanc rem ex jure
Quiritium Lucii Titii domini mei esse aio, 3 § 167 ; and that a similar
modification was not admissible in in jure cessio. It follows that
an inferior (filius, qui in mancipio est, or servus) could acquire for
his superior rural servitudes, but not urban or personal servitudes.
§§ 29, 30, these being only created by in jure cessio ; not, that is to
say, as res singulae : for as parts of a rerum universitas these and all
other rights could be acquired for a superior by an inferior by making
aditio of an hereditas with the sanction of the superior, § 188 ; and
ii. §§ 97-108.] DE HEREDITATIBVS
175
even as res singulae these rights could he acquired for a superior by
an inferior by title of legatum ; that is, if they are conferred by
a testator on the inferior as legatarius, Vat. frag. 51.
As Hereditas includes Obligations (res incorporales), active and
passive, as well as Dominium (res corporalis), the consideration of
Obligation should, theoretically speaking, precede the consideration
of Inheritance ; in an elementary exposition like the present, how*
ever, no practical inconvenience is occasioned by postponing the con-
sideration of Obligations, while we gain by exhausting the subject of
jus in rem before proceeding to the examination of jus in personam.
We may remember that Hereditas, as well as Servitudes and
Obligations, was included by the Komans under the term Kes
incorporales, § 14. The whole division of rights, however, into
Res corporales and Res incorporales is unsatisfactory ; for, as we
have already noticed, it was only from confusion of thought that
Dominium was held to be Res corporalis ; for all Rights are, really,
Res incorporales.
QYIBYS MODIS PER YNIVEESITATEM EES ADQVIRANTVR.
§ 97. Hactenus tantisper
admonuisse sufficit" quemad-
modum singulae res nobis ad-
quirantur. nam legatorum ius
quo et ipso singulas res adqui-
rimus opportunius alio loco
referemus. uideamus itaque
nunc quibus modis per uniuer-
sitatem res nobis adquirantur.
Inst. 2, 9, 6.
§ 98. Si cui heredes facti
sumus, siue cuius bonorum
possessionem petierimus, siue
cuius bona emerimus, siue
quein adoptauerimus,siue quam
in manum ut uxorem receperi-
mus, eius res ad nos transeunt.
Inst. 1. c.
§ 99. Ac prius de heredita-
iibus dispiciamus quarum du-
plex condicio est : nam uel ex
testamento uel ab intestato ad
nos pertinent. Inst. 1. c.
§ 100. Et prius est, ut de his
dispiciamus quae nobis ex
testamento obueniunt.
Inst. 1. c.
§ 97. So much at present re-
specting the modes of acquiring
SINGLE rights ; for bequest by way
of legacy, another title whereby
single rights are acquired, will
find a more suitable place in a
later portion of our treatise. We
proceed to the titles whereby an
AGGREGATE of rights is acquired.
§ 98. If we become civil heirs
of anyone, or claim praetorian
succession to his property, or
purchase the estate of an insol-
vent, or adopt a person sui juris,
or receive a wife into our hand,
the whole property of those per-
sons is transferred to us in an
aggregate mass.
§ 99. Let us begin with in-
heritances, whose mode of devo-
lution is twofold, according as
a person dies testate or intestate.
§ 100. And we first treat of
acquisition by will.
176 SVCCESSIO PER VNIVERSITATEM: [IT. §§ 97-108.
§ 101. Testamentorum autem
genera initio duo fuerunt : nam
aut calatis coinitiis testamen-
tum faciebant, quae comitia bis
in anno testamentis faciendis
destinata erant, aut in procin-
ctu, id est cum belli causa arma
sumebant ; procinctus est enim
.expeditus et armatus exercitus.
alterum itaque in pace et in otio
faciebant, alterum in proelium
exituri. Inst. 2, 10, 1,
& 102. Accessit deinde ter-
• •
tium genus testamenti quod
per aes et libram agitur. qui
neque calatis comitiis neque
in procinctu testamentum fece-
rat, is si subita morte urgue-
batur, amico familiam suam,
id est patrimonium suum, man-
cipio dabat, eumque rogabat
quid cuique post mortem suam
dari uelle£. quod testamentum
dicitur per aes et libram, sci-
licet quia per mancipationem
peragitur. Inst. 1. c.
§ 103. Sed ilia quidem duo
genera testamentorum in de-
suetudinem abierunt ; hoc uero
solum quod per aes et libram
fit in usu retentum est. sane
nunc aKter ordinatur quam
olim solebat. namque olim
familiae emptor, id est qui a
testatore familiam accipiebat
mancipio, heredis locum opti-
nebat, et ob id ei mandabat
testator quid cuique post mor-
tem suam dari uellet ; nunc
uero alius heres testamento in-
stituitur, a quo etiam legato
relmquuntur, alius dicis gratia
propter ueteris iuris imitatio-
nem familiae emptor adhibe-
tur. Inst. 1. c.
§ 104. Eaque res ita agitur :
qui facit (testamentum), adhi-
§ 101. Wills were originally of
two kinds, being made either at
the comitia calata, which were
held twice a year for making
wills, or in martial array, that is
to say, in the field before the
enemy, martial array denoting
an army equipped and armed for
battle. One kind, then, was used
in time of peace and quiet, the
other by persons about to go to
battle.
§ 102. More recently, a third
kind was introduced, effected by
bronze and balance. A man who
had not made his will, either in
the comitia calata or in martial
array, being in apprehension of
approaching death, used to convey
his estate by mancipation to a
friend, whom he requested to
distribute it to certain persons in
a certain manner after his death.
This mode of testamentary dispo-
sition is called the will by bronze
and balance, because it is carried
out by the process of mancipation.
§ 103. The first two modes have
fallen into desuetude, and that
by bronze and balance, which
alone survives, has undergone a
transformation. In former times
the vendee of the estate, the
alienee by mancipation from the
testator, held the place of heir,
and received the testator's in-
structions respecting the dispo-
sition of his property after his
death. At the present day, the
person who is instituted heir,
and who is charged with the
bequests, is different from the
person who, for form's sake, and
in imitation of the ancient law,
represents the purchaser.
§ 104. The proceedings are as
follows: The testator having sum-
ii. §§ 97-108.] DE TESTAMENTIS ORDINANDIS 177
bitis, sicut in ceteris mancipa-
tionibus, v testibus ciuibus Ro-
manis pu&eribus et libripende,
postquam tabulas testament!
scripserit, mancipat alicui dicis
gratia familiam suam ; in qua
re his uerbis familiae emptor
Utitur FAMILY PECVNI^lQVE
TV A ENDO MANDATELAM CVSTO-
DELAMQVE MEA3f, QVO TV IVRE
TE8TAMENTVM FACEEE POSSIS
SECVNDVM LEGEM PVBLICAM,
HOC AEKE, et ut quidam ad-
IClunt AENEAQVE LIBRA ESTO
Mini EMPTA ; deinde acre per-
cutit libram, idque aes dat te-
statori uelut pretii loco ; deinde
testator tabulas testamenti te-
nens ita dicit HAEC ITA VT IN
HIS TABVLIS CERISQVE SCRIPTA
SVNT, ITA DO ITA LEGO ITA
TESrOR ITAQVE VOS QVIRITES
TESTIMONIVM MIHI PERHIBE-
TOTE ; et hoc dicitur nuncu-
patio : nuncupare est enim pa-
lam nominare, et sane quae
testator specialiter in tabulis
testamenti scripserit, ea uidetur
generali sermone nominare at-
que confirmare.
§ 105. In testibus autem non
debet is esse qui in potestate
est aut familiae emptoris aut
ipsius testatoris, quia propter
ueteris iuris imitationem totum
hoc negotium quod agitur te-
stamenti ordin&ndi gratia cre-
ditur inter familiae emptorem
agi et testatorem ; quippe olim,
ut proxime diximus,is qui fami-
liam testatoris mancipioaccipie-
bat heredis loco erat ; itaque re-
probatum est in ea re domesti-
cum testimonium. Inst.2, 10,9.
§ 106. Unde et si is qui in
potestate patris est familiae
emptor adhibitus sit. pater eius
moned, as is done in other man-
cipations, five witnesses, all Bo-
man citizens of the age of pu-
berty, and a holder of the balance,
and having already reduced his
will to writing, makes a pro-forma
mancipation of his estate to a cer-
tain vendee, who thereupon utters
these words : ' Thy family and
thy money into my charge, ward,
and custody I receive, and, in
order to validate thy will con-
formably to the public enactment
(the Twelve Tables), with this
ingot, and ' — as some continue —
'with this scale of bronze, unto
me be it purchased.' Then with
the ingot he strikes the scale,
and delivers the ingot to the tes-
tator, as by way of purchase-
money. Thereupon the testator,
holding the tablets of his will,
says as follows : ' This estate, as
in these tablets and in this wax is
written, I so grant, so bequeath,
so declare ; and do you, Quirites,
so give me your attestation.'
These words are called the nun-
cupation, for nuncupation signi-
fies public declaration, and by
these general words the specific
written dispositions of the testator
are published and confirmed.
§ 105. For the part of witness,
it is a disqualification to be in the
power of the purchaser of the es-
tate or of the testator, because, the
old proceeding furnishing the
model, the whole testamentary
process is supposed to be a trans-
action between the purchaser and
the testator ; and in old times, as
was just observed, the purchaser
was in the place of the heir ;
wherefore the testimony of per-
sons in the same family was re-
jected.
§106. Hence too, if the vendee
is a filiusfamilias, neither his
father nor any one in his father's
178 SVCCESSIO PER VNIVERSITATEM [n. §§ 97-108.
testis esse non potest ; ac ne is power, his brother, for instance,
quidem qui iu eadein potestate is competent to attest ; on the
•• • " • • . . -i . ! other hand if a filiusfamilias,
after his discharge from service,
make a will of his military pecu-
lium, neither his father nor any
est, uelut frater eius. sed si
films familias ex castrensi pe-
culio post missionem faciat
testamentum, nee pater eius
recte testis adhibetur nee is qui
in potestate patris est.
§ 107. De libripende eadem
quae et de testibus dicta esse
intellegemus ; nam et is testium
numero est.
§ 108. Is uero qui in pote-
state heredis aut fegatarii est,
cuiusue heres ipse aut legata-
rius in potestate est, quique in
eiusdem potestate est, acifeo
testis et libripens adhiberi po-
test, ut ipse quoque heres aut
legatarius iure adhibeantur.
sed tamen quod ad heredem
pertinet quique in eius pote-
state est cuiusue is in potestate
erit, minime hoc iure uti debe-
mus.
one in his father's power is quali-
fied to be a witness.
§ 107. The same rules apply
to the balance- holder, for the
balance-holder is reckoned as a
witness.
§ 108. Not only is a person
who is in the power of the heir
or legatee, or a person who has
power over the heir or legatee,
or a person in the same power
as the heir or legatee, capable of
being witness or balance-holder,
but the heir or legatee himself
can act in this character. How-
ever, it is advisable that as regards
the heir, and those in his power,
and the person in whose power
he is, the testator should not avail
himself of this right.
§§ 97, 98. On the death of a civis all his rights and obligations
(except those of a purely personal character, such as ususfructus and
liability for delict) were regarded as constituting a universitas juris
or undivided succession (supra, p. 126) called hereditas. The here-
ditas, in fact, was the legal personality of the deceased, and so the
successor to it, called heres, had exactly the same position in re-
spect of the entire family property as the deceased paterfamilias.
Hence he was personally liable to pay all the debts in full, as if he
had himself contracted them, cf. Sohm, § 108.
In the corresponding passage of Justinian's Institutes bonorum
emptio and conventio in manum, being obsolete, are not mentioned.
§§ 101-103. A will is thus defined by Ulpian: Testamentum
est mentis nostrae justa contestatio, in id sollemniter facta ut post
mortem nostram valeat, 20, 1. Testamentary disposition was an
interference with the rights of family succession under the law of
intestacy, which at first seemed so great an innovation as to require
the sanction of the gentes. Accordingly the will executed in the
Comitia Calata, or convocation of the gentes, was really a private
law (perhaps originally instituted as a modified form of adoption,
when a man had no children to succeed to his property) ; and even
the will in procinctu, when we remember the original identity at
ii. §§ 97-108.] DE TESTAMENTIS ORDINANDIS 179
Rome of the civil and military organization, may be regarded as the
legislative act of the curiae in military convocation. The essential
characteristic of this will was the nomination of a heres. Hence so
important became the institution of a heres to the validity of a will
in Roman law, that a Roman testament might be simply defined
as the institution of a heres.
The mancipatory will, or will by bronze and scale, probably began
to supersede the older form, which was perhaps confined to patricians,
when the Twelve Tables gave legal force to the nuncupative part of
mancipation (Cum nexum faciet mancipiranque, uti lingua nuncu-
passit, ita jus esto, Festus. ' In contract or conveyance by bronze
and balance, the oral declaration shall h'ave legal force '), and had ex-
pressly recognized in every paterfamilias, whether patrician or plebeian,
a power of testamentary disposition (Uti legassit super [familia],
pecunia, tutelave suae rei, ita jus esto. Ulpia/n, 11, 14).
The introduction of writing marks an era in mancipatory wills.
Originally, the testator gave oral instructions to the familiae emptor,
or purchaser of the family property, in the presence of the witnesses,
as to the terms on which the property was to be held by him and
distributed after the testator's death. These oral instructions, forming
the lex mancipii, or conditions of the conveyance, called nuncupatio,
served as a means, under the clauses -of the Twelve Tables above cited,
of nominating a heres. Hence a special lex curiata for this purpose
was no longer necessary, and the familiae emptor, instead of being a
kind of trustee for carrying out the testator's wishes, became a mere
formality, used simply for the purpose of making the will mancipatory.
Afterwards, forthe sakeof secirecy, the testator committed his intentions
to writing, and the nuncupation became a mere form of publication,
or general ratification of the directions contained in the tablets which
the testator held in his hand, when he executed the mancipation.
§ 105. It is an intelligible rule, that a person interested in the
validity of a will should be incompetent as a witness ; and, when
the familiae emptor was in the place of the heir, it was reasonable
to disqualify for attestation any one united in interest to him. But
when the mancipation was purely fictitious (imaginaria mancipatio,
Ulpian, 20, 2 ; imaginaria venditio, Inst. 2, 10, 1), one sesterce being
paid as the nominal price, and the imaginary vendee distinct from
the heir, the continuance of this disqualification shows the tendency
of the Romans to venerate rules after the principles on which they
were founded had ceased to operate. In the meantime the heir,
who was, strictly speaking, really interested, was competent to be
a witness. Cicero, for instance, mentions that he and Clodius were
both witnesses to a will in which they were appointed heirs, Pro
Milone, 18, 48; but in the time of Gaius, as we see by the text,
N a
180 SYCCESSIO PER VNIVERSITATEM [n. §§ 97-108.
§ 108, such attestation was at least questionable, and when Ulpian
wrote it seems to have been inadmissible. The whole law on this
subject was, however, deranged : totum jus conturbatum erat, Inst.
2, 10, 10: the transference of interest from the familiae emptor to
the heres not being accompanied by a corresponding transference of
testimonial disqualification from the relatives of the familiae emptor
to the relatives of the heres. Justinian converted the advice of Gaius
into a fixed rule of law, and disabled the heir and persons united to
Mm by the bond of potestas from giving attestation, Inst. 2, 10, 10.
Legatees retained their competency to attest.
§ 106. This statement of Gaius respecting a will of castrense
peculium is inadvertently transferred to Justinian's Institutes, 2,
10, 9, but is inconsistent with a dictum of Ulpian's in the Digest :
Per contrarium quaeri potest, an pater ejus, qui de castrensi peculio
potest testari, adhiberi ab eo ad testamentum testis possit. Et
Marcellus libro decimo Digestorum scribit posse : et frater ergo
poterit, Dig. 28, 1, 20, 2. We have here, then, a case of Antinomy
(contradictory laws) in Justinian's legislation. Vangerow, § 444, solves
the antinomy by supposing that Ulpian speaks of a will made during
service ; the Institutes, like Gaius, of a will made post missionem.
By English law, 1 Viet. c. 26, any devise or legacy to an attesting wit-
ness is void, and the evidence of the witness admissible, and no person
is incompetent to attest on account of being appointed executor.
In another form of will deriving its validity from the authority
of the praetor, the form of mancipation was dropped, and the only
authentication required was the apposition of the seals of seven
attesting witnesses. Under such a will, however, the successor could
not take the legal estate or hereditas, but only possession of the goods
or bonorum possessio, §§ 119, 120, 148.
Before the time of Justinian, a form of will had been established
deriving its validity from three orders of legislation (jus tripertitum),
the civil law, the praetorian edict, and the imperial constitutions.
In accordance with the last, the witnesses were required to sign
or subscribe their names ; in accordance with the praetorian edict
they were required to attach their seals (signacula) ; and in accordance
with the civil law, their number was required to be seven (a number
obtained by adding the libripens and familiae emptor to the five
witnesses of the mancipation), and the whole formality of attestation
and publication was required to be continuous (unitas actus), that is,
to proceed from beginning to end without interruption or inter-
position of any other business as one act. Inst. 2, 1 0, 3.
Another form of will is mentioned by Justinian as perfectly valid
at civil law, the Nuncupative will, consisting solely of an oral
declaration in the presence of seven witnesses, Inst. 2, 10, 14. A
ii. §§109-111.] DE TESTAMENTIS MILITVM
181
modification of this produced one of the most solemn forms of testa-
ment. The nuncupation was made before the Praeses provinciae,
or a judex ; and thereupon a memorandum or protocol (insinuatio) of
the testator's dispositions was made at length in the public records
(acta or gesta) of the proceedings of the governor or court. This
was called a public testament. Cod. 6, 23, 19.
By English law, 1 Viet. c. 26, only two witnesses are required to
a will, whether of real or personal estate. The will must be in
writing, signed at the end by the testator, or by some other person
in his presence and by his direction ; and such signature must be
made or acknowledged by the testator in the presence of the two
witnesses, who must be present at the same time, and who must
attest and subscribe the will in the presence of the testator.
[DE TESTAMENTIS MILITVM.]
§ 109. Sed haec diligens ob- § 109. But from these strict
seruatio in ordinandis testa- rules in the execution of a will
mentis militibus propter ni-
miam inperitiam const iiuiiom-
bus principum remissa est.
nam quamuis neque legitimum
numerum testium adhibuerint
neque uendidermi familiam
neque nuncupauerint testamen-
tum, recte nihilo minus testan-
tur. Inst. 2, 1 1 pr.
§ 110. Praeterea permissurn § 110. Moreover, they may
est iis et peregrines et Latinos make aliens and Latini (Juniani)
instituere heredes uel iis legare, their heirs or legatees, whereas
cum alioquin peregrini quidem under other wills an alien is dis-
ratione ciuili prohibeantur qualified from taking a succession
or legacy by the civil law, and
Latini by the lex Junia.
§ 1 1 1. Celibates also, whom the
lex Julia disqualifies for taking
successions or legacies, and child-
less persons whom the lex Papia
soldiers, in consideration of their
extreme ignorance of law, have
by imperial constitutions a dis-
pensation. For neither the legal
number of witnesses, nor the cere-
mony of mancipation or of nun-
cupation, is necessary to give force
to their will.
capere hereditatem legataque,
Latini uero per legem luniam.
§ 111. Caelibes quoque qui
lege lulia hereditatem legata-
que capere uetantur ; item orbi,
id est qui liberos non habent,
quos lex
(48 uersus in C perierunt]
-prohibentur hi —
(6 uersus in C legi nequeunt)
1 eius more faciant — |
|xxx annorum 1
(8 uersus in C legi nequeunt)
1 res 1 —
prohibits from taking more than
half a succession or legacy (see
§ 286), are exempt from these
incapacities under the will of a
soldier.
(2 uersus in C legi nequeunt]
182 SVCCESSIO PER VNIVERSITATEH [n.§§ 112-114.
§ 109. The military will could only be executed during actual
service, and in this period only when the soldier was in camp, not
when he was at home or on leave of absence. A will made after
the soldier's discharge from service or during his absence from camp
was governed by the same rules as the will of a civilian (paganus).
A military will, executed without the ordinary formalities, only
remained valid during a year after discharge from service. Inst.
2, 11,3.
TESTAMENTI FA-CTIO;
§ 112. — ex auctoritate dim § 112. But a senatusconsult
Hadriani senatuseonsultum under the late emperor Hadrian,
as already mentioned (1 § 1 15 a),
made coemption unnecessary, and
permitted women to make a will
on attaining 1 2 years of age, only
requiring their guardian's sanc-
tion if they were still in a state
factum est quo permissum est
! feminis etiam sine co-
emptione te|stamentum facere,
si modo non minores essent
annortim xi I, scilicet ut quae
tutela liberatae non essent,
tutore auctore testari deberent.
§ 113. Videntur ergo melio-
ris condicionis esse feminae
quam masculi ; nam masculus
minor annorum xini testa-
men turn facere non potest,
etiamsi tutore auctore testa-
mentum facere uelit, femina
uero post xn annim testa-
menti f&ciendi ius nanciscitur,
§ 114. Igitur si quaeramus an
ualeat testamentum, inprimis
aduertere debemus an is qui
id fecerit habuerit testamenti
factionem ; deinde si habuerit,
requiremus an secundum iuris
ciuilis regulam festatus sit, ex-
ceptis militibus, qui&its propter
nimiam inpeTiti&m, ut diximus,
quomodo uelint uel quomocfo
possini, permittitur testamen-
tum facere.
of pupilage.
§ 1 1 3. Women, then, are in a
better legal position than males,
for a male under 14 years of age
cannot make a will, even with
his guardian's sanction, but a
female acquires testamentary ca-
pacity as soon as she is 12 years
old. "
§ 1 1 4. Accordingly, to determine
the validity of a will, we must
first ascertain whether the testator
had testamentary capacity ; next,
if he had, whether he conformed
to the requisitions of the civil law
in its execution, with this reserva-
tion, that soldiers, on account of
their extreme ignorance of law,
as was mentioned, are allowed to
make their wills in any way they
like and in any way they can.
§ 112. On the lost leaf of the Veronese codex Gaius proceeded to
mention the classes who were incompetent to make a will. Among
these would be the filiusfamilias, who could only dispose of his
peculium castrense. Cf. Inst. 2, 12 ; Ulp. 20, 10 ; Epit. 2, 2, 1.
§ 114. Testamenti factio is a term applied, (A) to the Testator,
Testamenti factio activa ; (B) to the object of his bounty, Testamenti
ir. §§ 112-114] TESTAMENTI FACTIO 183
factio passiva ; (C) to the witnesses. Let us consider it in each of
these applications.
(A) Testament! factio activa sometimes comprehends all the con-
ditions (physical included) of testamentary capacity, and then it
excludes children below the age of puberty and lunatics : but the
proper meaning of testamenti factio is the qualification by Status for
mancipatio, and consequently for the mancipatory will : that is to
say, it is equivalent to Commercium, and therefore is ascribed to
all cives, all Latini, and all aliens w,ho have received a grant of
commercium.
To make a will, however, a testator must have not only personal
capacity, but he must also have property to leave. This latter
condition is necessarily wanting to the Filiusfamilias and to the
Latinus Junianus : in their case, therefore, Testamenti factio does
not mean capacity of being testator, but of playing some other
part in the mancipatory will ; i. e. of being heir, or legatee, or witness.
The testator's capacity is required at two periods : at the time of
making the will and at the time of the testator's death. The strict
civil law also required the continuance of capacity during the in-
terval between these dates : but the praetor disregarded any inter-
vening incapacity (capitis diminutio minima), and, notwithstanding
such an event, gave the will efficacy by granting to the heir, not
the civil hereditas (which was beyond his power), but juxta-tabular
possession (bonorum possessio juxta or secundum tabulas), §§ 145-147,
comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus
bonorum possessio datur utroque tempore jus testamenti faciendi
habuerit, et quum facit testamentum et cum moritur. . . . Sed si
quis utroque tempore testamenti factionem habuerit, medio tempore
non habuerit, bonorum possessio secundum tabulas peti poterit.
Two other cases of incapacity were cured by the principle of
postliminy and the lex Cornelia testamentaria : if a testator suffered
capitis diminutio maxima by falling into the hands of the enemy,
when he returned from captiyity his will reacquired validity by the
operation of postliminy : if he never returned his will obtained
validity by the fiction that he died a moment before his capture.
Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testa-
mentum irritum fieri, adjiciendum est postliminio reversi vires suas
recipere jure postliminii, aut si ibi decedat, lege Cornelia confirinari.
Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non
est ab hostibus, quasi tune decessisse videtur, cum captus est.
Ulpian, 23, 5.
The physical conditions of testamentary incapacity (infancy, lunacy)
are only critical at the date of making the will.
(B) The Honoratus or the recipient of the testator's bounty,
184 SVCCESSIO PER VNIVERSITATEM [n.§§ 112-114.
whether heres or legatarius, required testament! factio passiva, which
like testamenti factio activa meant Commercium or capacity of taking
part in mancipatio. Accordingly both a filiusfamilias and a Latinus
could be heres or legatee (for the limitation, however, of the capacity
of Latinus Junianus by the lex Junia see below). This capacity
must exist at three periods (tria tempora) : the making of the will,
the death of the testator, and the acquisition of the succession by the
heres (aditio). The interval between the making of the will and
the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5,
60, 4. The interval between the death of the testator and the aditio
of the heres was material, because on the first heres institutus be-
coming incapable the inheritance would be instantaneously delated
(offered for acceptance) to the heres substitutus or to the heres ab
intestate.
The looking to the capacity of Honoratus at the date of making
the will as well as later, though apparently based on no motives of
testamentary policy, but only due to the mancipatory form of the
primitive will, which was ostensibly a mancipatio inter vivos,
i. e. a disposition taking effect in the lifetime of the mancipator,
was retained in Justinian's legislation after wills had lost their
mancipatory form.
In respect of Honoratus it is necessary to distinguish institutio
from acquisitio (aditio) ; and testamenti factio passiva, competence
for institution, from capacitas or jus capiundi, competence for
acquisition. Testamenti factio passiva was required at the date of
the making of the will ; and in its absence a disposition was deemed
to be unwritten (pro non scripto habetur) ; and the property dis-
posed of went by Accretio to the other heredes scripti. Capacitas,
in its distinctive sense, was only required at the date of acquisition ;
and in its absence the unacquired property became caducous, and
devolved in part or in whole to persons fulfilling certain conditions
or to the state, as determined by the laws of caducity.
Incapaces, or persons who, from want of capacity to take, forfeited
part or the whole of the testator's bounty, comprehended :
(1) Latini Juniani, who were made incapable by the lex Junia,
1 § 23, 2 §§ 110, 275. Of. Ulpian, 17, 1.
(2) The unmarried (caelibes) were totally, and the married but
childless (orbi) were made partially incapable by the lex Papia
Poppaea.
(3) Husband or wife (vir et uxor), who by the same law could
only take, as between one another if they had no children, one
tenth of a heritage, and another tenth for every living child by a
former marriage : further, another tenth for a common child that
lived to the day of naming (nominum dies), or as Mommsen (Staatsr.
ii. §§115-122.] BONORVM POSSESSIO TESTATI 185
3, 202) would read the MS. of Ulpian, after the ninth day (nono die),
or two tenths for two such children, but not more. In addition to
their tenth, the husband or wife who were childless might have the
usufruct of a third part, and, if they had had children, the property
in a third, Ulpian, 1, 15.
These disqualifications were not recognized in Justinian's legis-
lation : so that at that period the distinction between capacitas and
testamenti factio passiva had lost much of its importance. We find,
however, under Justinian the penalty of forfeiture (ereptio, ablatio)
for Indignitas. Indigni were persons deemed on various grounds
unworthy of the testator's bounty. The devolution of the property
intended for them followed different rules from those which governed
other cases of Incapacity. See § 151, comm.
(C) Testamenti factio was further applied to designate the quali-
fication of the witnesses to a will. This was only required to exist
at one period, the date of the execution of the will.
§ 1 1 3. By English law, the age at which a person was competent
to make a will was formerly the same as by Roman law, namely,
12 years for females, 14 years for males ; but now, by 1 Viet. c. 26,
no one is competent to make a will before attaining 2 1 years of age.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§115. Non tamen, ut iure §115. The civil law, however,
ciuili uale&i testamentum, suf- is not satisfied by our observing
licit ea obseruado quam supra the requisitions hereinbefore ex-
exposuimus de familiae uendi- plained respecting mancipation,
tione et de testibus et de nuncu- attestation, and nuncupation,
pationibus.
§ 116. (Seel} ante omnia § 116. Above all things, we
requirendum est, &n institutio must observe whether the in-
heredis sollemni more facta sit ; stitution of an heir was in solemn
nam aliter facta institutione form ; for if the institution of an
nihil proficit familiam testa- heir was not in the prescribed
toris ita uenire testesque ita form> {i is unavailing that the
adhibere et ita nuncupare te- mancipation, attestation, nuncu-
stamentum, ut supra diximus. Patlon> were reSular'
& 117. Sollemnis autem in- , ,,
stitutio haec est TITIVS HERES . § , ' 1° V^'
, .n . institution is this: 'iJe litius
ESTO; sedet ilia mm conpro- heir>, The followi also
bata uidetur TITIVM HEREDEM se£ms now to be recogni/ed . * j
ESSE IVBEO; at ilia non est order that Titius be my heir ,
conprobata TITTVM HEREDEM <i wjsh Titius to be my heir'
ESSE VOLO ; sed et illae a pie- js not admitted ; and most reject
risque inprobatae suni TITIVM the following: ' I institute Titius
HEREDEM INSTITTO, item HERE- my heir,' ' I make Titius my
DEM FACIO. heir.'
186 SVCCESSIO PER VNIVERSITATEM [11. §§ 115-122.
§ 118. Obseruandum prae-
terea est, ut si mulier quae in
tutela est faciat testamentum,
tutore auctore facere debeat ;
alioquin inutiliter iure ciuili
testabitur.
§ 119. Praetor tamen si se-
ptem signis testium signatum
sit testamentum, scriptis here-
dibus secunduin tabulas testa-
menti loonorum (possmsionem)
pollicetur: (ei) si nemo sit ad
quern ab intestate iure legitimo
pertineat hereditas, uelut frater
eodem patre natus aut patruus
aut fratris filius, ita poterunt
scripti heredes retinere heredi-
tatem. nam io^em iuris est et
si alia ex causa testamentum
non ualeat, uelut quod familia
non uenierit aut nuncupationis
uerba testator locutus non sit.
§ 120. Sed uideamus an
etiamsi frater aut patruus ex-
tent, potiores scriptis heredibus
habeantur. rescripto enim im-
peratoris Antonini significatitr,
eos qui secundum tabulas testa-
menti non iure factas bonorum
possessionem petierint, posse ad-
uersus eos qui ab intestate uindi-
cant hereditatem defendere se
per exceptionem doli niali.
§ 121. Quod sane quidem ad
masculorum testamenta perti-
nere certum est ; item ad femi-
narum quae ideo non utiliter
testatae sunt, quia uerbi gratia
familiam non ue-ndiderint aut
nuncupationis uerbalocutae non
sint ; an autem et ad ea testa-
menta feminarum quae sine tu-
toris auctoritate fecerint haec
constitutiopertineat,uidebimus.
§ 122. Loquimur autem de
his scilicet feminis quae non in
legitima paren^um aut patro-
norum tutela sunt, sed [de his]
§ 1 1 8. It is also to be remem-
bered that a woman who has a
guardian must have her guardian's
sanction to make a will, otherwise
her will is invalid at civil law.
§ 119. The praetor, however,
if the will is attested by the seals
of seven witnesses, promises to
put the persons named in the will
in juxta-tabular possession, and if
there 1$ no one to take the in-
heritance by statutory right under
the rules, of intestacy, a brother
by the same father, for instance, a
father's brother, or a brother's son,
the persons named in the will are
able to retain the inheritance ; for
the rule is the same as if the will
is invalid from any other cause, as
because the familia has not been
sold or because the words of nun-
cupation have not been spoken.
§ 120. But are not the heirs
named in the will preferred even
to a brother and paternal uncle?
since the rescript of the emperor
Antoninus permits the person
named in the will who has ob-
tained juxta - tabular possession
under an informal will to repel
the claimants in intestacy by the
plea of fraud.
§ 121. This certainly applies
both to the wills of males and also
to the wills of females which are in-
formal for such faults as omission
to sell the familia or to say the
words of nuncupation: whether
the constitution applies also to
wills of females executed without
their guardian's sanction, is a
question.
§ 122. We are not speaking of
females who are the statutory
wards of their parent or patron,
but of those who are wards of the
ii. §§115-122.] BONORVM POSSESSIO TESTATI 187
quae alterius generis tutores other sort of guardian, who are
habent, qui etiam inuiti co- compellable to give their sanction;
guntur auctores fieri ; alioquin for a parent or patron can cer-
parentem et patromon sine au- tainlY not be displaced by a will
ctoritate eius facto testamento he has not chosen to sanctlon-
non summoueri palam est.
§ 1 1 7. The necessity of using formal \vords in the institution of
an heir was abolished by a, constitution of Constantius and Constans,
A. D. 339, €od. 6, 23, 15.
As to the nomenclature employed in the following exposition of
Eoman testamentary law, it must be observed that as the Koman
conception of Heres is not found in English law, so we have no legal
term corresponding to it. In the language of English jurisprudence
Heir denotes a successor to real estate, while Executor, the notion of
which is derived to some exterxt from Roman law, denotes a successor
appointed to succeed to personal property. Again Heir denotes a suc-
cessor to real estate in case of intestacy. Devisee denotes a successor
to real estate under a will.
The word Executor is not available as a translation of heres. The
Executor of English law, unless also a legatee, holds a merely onerous
office ; whereas the heres of Roman law was always, if there was any
residue, a beneficiary. The Roman heres, ip fact, united the characters
of the English Executor and residuary legatee : and the lex Falcidia
provided that the residue should as against the claims of legatus always
amount to a fourth of the testator's property. Nor is the executor, like
the heres, personally liable for the debts of the deceased beyond assets.
In translating the word Heres heir, which is conyenient from its
relation to the indispensable terms disi nherit and disinheritance, an
English reader must not be misled by false associations with Real
Property law, but must understand that it is used to signify the
Universal successor of Roman law, whether designated by will or by
the rules of intestacy.
Bequest (which in English law is, related to personalty as devise
to realty) has been used in connexion with legacies, i. e. with dis-
positions in favour of legatarius as opposed to heres ; in favour,
that is, of a person who takes a single thing or things belonging to
the testator, not his familia, that is, the Universitas of his rights and
obligations, or a fraction of this Universitas.
§§ 119, 120. The praetor only sustained a testament in spite of its
civil invalidity when the grounds of civil invalidity were want of
mere external formalities (mancipation, nuncupation), not against
more serious defects, such as preterition of self-successor. He
sustained it, however, against the preterition of suus postumus, if
suuspostumus died before the testator, Dig. 28, 3, 12.
188 SVCCESSIO PER VNIVEKSITATEM [n. §§115-122.
The praetorian succession, or right of succession introduced by the
praetor under the name of Bonorum possessio, sometimes as supple-
mentary to, and sometimes in the place of, civilis hereditas, may be
divided into testate succession and intestate succession. The latter
branch (bonorum possessio intestati) was firmly established at an
earlier period than the former (bonorum possessio secundum tabulas).
The rescript mentioned by Gaius, § 120, which is attributed by some
writers to Antoninus Pius and by others to Marcus Aurelius, as is the
more probable view, may be regarded as having definitively estab-
lished the validity of the praetorian testament, not simply when
supplementary to, but also when in opposition to, jus civile ; in other
words, a praetorian will might make a person bonorum possessor
cum re, although the inheritance was claimed by some one with a
valid civil title.
In its origin Bonorum possessio was probably only the provisional or
interimistic possession granted to one of the parties in a suit of Heredi-
tatis petitio, cf. Sohm, § 1 10. This suit was a species of Keal action
(actio in rem), and in all Real actions it is necessary to determine which
of the litigants shall have possession during the pendency of the litiga-
tion. In the earliest period, that of statute-process (legis actio), the
interim possession was called vindiciae, and the praetor who assigned
it to one of the parties was said vindicias dicere, 4 § 1 6. In making the
grant of vindiciae he was probably governed by the same rule which
afterwards prevailed when the question of interim possession was
determined by application of the Interdicts Utrubi and Uti possidetis :
that is to say he probably allowed the party in actual possession to
continue in possession. But this rule was inapplicable to the case
of Hereditatis petitio, for at the decease of the proprietor who leaves
an inheritance not one of the claimants to succeed may be in actual
possession. Here accordingly the grant was governed by different
principles : if a will, prima facie valid, was propounded, possession
was granted to the claimant under the will (bonorum possessio
secundum tabulas) : if no such will was propounded, possession was
granted to the civil heirs, the self-successor (suus heres) being eventu-
ally allowed to claim bonorum possessio unde liberi, coming before the
nearest agnates (legitimi). Then as supplementary to the civil law,
persons who were not recognized as heredes, namely persons claiming
under a praetorian will, till they were preferred by statute to agnates,
§ .120, and next cognates (bonorum possessio unde cognati), and the
wife or husband, as such (bonorum possessio unde vir et uxor), were
put in possession in default of other heirs : children (liberi), who by
emancipation had lost the character of self-successors, were never-
theless admitted to possession in the first order in preference to agnates
of the second order, just as if they had continued unemancipated
ii. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 189
(bonorum possessio unde liberi). The right of provisional possession
of course corresponded to a presumptive right of definitive ownership.
Although a will was propounded, yet if a descendant of the
testator, who would have been self-successor if he had not been
emancipated, was therein pretermitted (praeteritus), i.e. not either
instituted heir or disinherited, possession was granted to such preter-
mitted descendant (bonorum possessio contra tabulas). Contra-tabular
possession did not make a will absolutely void as the passing over
of suus heres might do : if the praeteritus was an emancipated son,
although he obtained contra-tabular possession, he was bound, as we
shall see, by some of the dispositions of the will ; so that his suc-
cession was partly intestate, partly testate.
§ 122. In ancient Kome, females, even after attaining their
majority, were subject to perpetual guardianship. In the time of
Gaius, the only survival of such guardianship to which they con-
tinued really subject appears to have been that of ascendants and
patrons, cf. 1 §§ 189-193; 2 §§ 85, 112. But before the time of
Justinian even this had ceased.
DE EXHEKEDATIONE LIBEEOEVM.
§ 123. Item qui filium in
potestate habet curare clebe£,
ut eum uel heredem instituat
uel nominatim exheredet ; alio-
quin si eum silentio praeterie-
rit, inutiliter testabitur, adeo
quidem, ut nostri praeceptores
existiment, etiamsi uiuo patre
filius defunctus sit, neminem
heredem ex eo testamento exi-
stere posse, qu/a scilicet statim
ab initio non constiterit insti-
tutio. sed diuersae scholae
auctores, siquidem films mortis
patris tempore uiuat, sane in-
pedimento eum esse scriptis
heredibus et ilium ab intestato
heredem fieri confitentur ; si
uero ante mortem patris inter-
ceptus sit, posse ex testamento
hered^afem adiri putant, nullo
iam filio inpedimento ; quia
scilicet existimant (mm) sta-
tim ab initio inutiliter fieri
testamentum filio praeterito.
Inst. 2, 13 pr.
§ 123. Moreover, a testator who
has a son in his power must take
care either to institute him heir or
to disinherit him individually, for
passing him over in silence invali-
dates the will. So much so, that
according to the Sabinians, even
if the son die in the lifetime of
the father, no one can take as
heir under the will on account of
the original nullity of the insti-
tution. But the followers of the
other school hold that although
the son, if alive at the time of
his father's death, bars the heirs
mentioned in the will and takes
as self-successor by intestacy, yet,
if the son die before the father,
the heirs under the will may
succeed, the son being no longer
in their way, because according to
this view the will was not void
ab initio by his silent preter-
mission.
190 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
§ 124. Ceteras uero liberorum
personas si praeterierit testator,
ualet testamentum (sed} prae-
teritae istae personae scriptis
heredibus in partem adcrescunt,
si sui heredes sint. in uirilem,
si extranei, in dimidiam. id est
si quis tres uerbi gratia filios
heredes instituerit et filiam
praeterierit, filia adcrescendo
pro quarta parte fit heres, et ea
ratione idem c'onsequitur, quod
ab intestato patre mortuo habi-
tura esset ; at si extraneos ille
beredes instituerit et filiam
praeterierit, filia adcrescendo
ex dimidia parte fit heres.
quae de filia diximus, eadem
et de nepote deque omnibus
liberorum personis seu inascu-
lini seu /eminini sexus dicta
intellegemus. Inst. 1. c.
§ 125. Quid ergo est? licet
eae secundum ea quae diximus
scriptis heredibus dimidiam
partem detrahan-t, tamen prae-
tor eis contra tabulas bonorum
possessionem promittii, qua ra-
tione extranei heredes a tota
hereditate repelluntur et effi-
ciuntur sine re heredes.
sf* •§ 1^6. Et hoc iure utebamur,
quasi nihil inter Feminas et
masculos interesset ; sed nuper
imperator Antoninus signifi-
cauit rescripto suas non plus
nancisci feminas per bonorum
possessionem, quam quod iure
adcrescendi consequerentur.
quod in emancipatarum quoque
persona obseruandum eat, ut
hae quoque, quod adcrescendi
iure habiturae essent, si in po-
testate fuissent, id ipsum etiam
per bonorum possessionem ha-
beant.
§ 127. Sed siquidem filius a
§ 124. By the pretermission of
other self-successors a will is not
avoided, but the omitted persons
come in to share with the heirs
named in the will, taking an
aliquot part if the latter are self-
successors, a moiety if they are
strangers. Thus if a man has
three sons and institutes them
heirs, saying nothing of his
daughter, the daughter comes in
as co-heir and takes a fourth of
the estate, being entitled to the
portion which would have de-
volved on her by intestacy : but
when the instituted heirs are
strangers, the daughter, if passed
over, comes in and takes a moiety.
What has been said of the
daughter applies to the son's
children, male and female.
§ 125. But though a female
according to this statement of
the law only deprives the heirs
under the will of a moiety, the
praetor promises to give her
contra-tabular possession, so that,
if strangers, they lose the whole,
and become heirs without taking
anything.
§ 126. And this was once the
law, and there was no distinction
between males and females ; but
the Emperor Antoninus has re-
cently decided by rescript that
female self-successors shall not
take more by contra-tabular pos-
session than they would by
coming in as co-heirs at civil law,
by right of accrual. And the
same rule applies to emancipated
daughters, that is, they obtain by
contra-tabular possession the same
shares as they would have ob-
tained as co-heirs by right of
accrual if they had not been
emancipated.
§ 127. A son must be disin-
IT. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 191
patre exheredetur, nominatim
exhered&ri debet, ; alioquin non
uidetur exheredari. nomina-
tim autem e^heredari uidetur,
siue ita exheredetur TinVs FI-
LIVS MEVS EXHEE.ES ESTO,
ita FILTVS MEVS EXHEKES ESTO,
non adieCto proprio nomine.
Inst. 2, 13,1.
§ 128. Ceterae uero liberomm
personae uel femini sexus uel
masculini sajtis inter ceteros
exheredantur, id est his uer-
})is GETEBI OMNES EXHEREDES
SVNTO, quae uerba - .post
injstitutionem heredum adici
solent. sed hoc ita — |.
Inst. 1. c.
§ 129. Nam praetor omnes
uirilis sexus liberorum perso-
nas, | id est nepotes quoque et
pronepotes - j - 1 - 1.
§ 130. Postumi quoque liberi
uel heredes institui debent uel
exheredari.
§ 131. Et in eo par omnium
condic^o est, quod (ety in filio
•postumo et in quolibet 'ex ceteris
liberis siue feminini seafus
siue -masculini praeterito ualet
quidem testamentum, sed po-
stea agnatione postumi siue
postumae rumpitur, et ea ra-
tione totum infirm&iur. ideo-
^ue si mulier ex qua postumus
aut postuma, speraba^r abor-
tum fecerit, nihil inpedimento
est scriptis heredibus ad here-
ditatem adeundam. Inst. 1. c.
§ 132. Sed feminini quidem
sexus personae uel nominatim
uel inter ceteros exheredari
solent, dum tamen si inter
herited individually ; otherwise
the disherison is invalid. In-
dividual disherison may be ex-
pressed in these terms : Be Titius
my son disinherited : or in these :
Be my son disinherited, without
inserting his name.
and all
may be
§ 128. Other male
female self-successors
sufficiently disinherited inter
ceteros thus : Be the remainder
disinherited, which words usually
follow the institution of "the heir :
this, however, is only the rule of
the civil law.
§129. For the Praetor requires
all male self-successors, sons,
grandsons, greatgrandsons, to
be disinherited individually, al-
though he permits females to
be disinherited in an aggregate
(inter ceteros), and, failing such
disherison, promises them the
contra-tabular succession.
§ 130. Children born after the
making of the will must either be
instituted heirs or disinherited.
§ 131. And in this respect all
stand in the same position, that
if a son or any other child, male
or female, born after the making
of the will, be passed over in
silence, the will is originally valid,
but subsequently rescinded and
totally avoided by the birth of the
child ; so that if the woman from
whom a child was expected have
an abortive delivery, there is
nothing to prevent the heirs
named in the will from taking
the succession.
§ 132. Female self-successors
born after the making of the will
may be disinherited either indi-
vidually or inter ceteros, with
192 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
ceteros exheredentur, aliquid
eis legetur, ne uideantur per
obliuioneia. praeteritae esse.
masculini uero sexus person&s
placuit non aliter recte exAere-
dari, quam si nominatim ex-
heredentur, hoc scilicet modo
QVICVMQVE MIHI FILIVS GENI-
TVS FVEBIT _EX|HEBES ESTO.
Inst. 1. c.
§ 132 a. 1 potest u 1 —
(4 uersus in C legi nequeunt)
-agat-
§ 133. Postumorum autem
loco sunt et hi qui in sui here-
dis | locum succedendo quasi
agnascendo fiunt parentilous
sui heredes. ut ecce si filium
et ex eo nepotem ne\piemue in
•potestate habeam, quia filius
gradu praecedit, \ is solus iura
sui heredis habet, quamuis ne-
pos quo\que et neptis ex eo in
eadem potestate sint ; sed si
filius meus me uiuo moriatur,
aut qualibet ratione exeat de
potestate mea, incipit nepos
neptisue in eius locum succe -
dere, et eo modo iura suorum
heredum quasi agnatio\ne nan-
ciscuntur. Inst. 2, 13, 2.
§ 134. Ne ergo eo modo
rumpatur mihi t,e\sifimentum,
sicut ipsumjilium uel heredem
mstituere uel | exheredare de-
beo, ne non iure faciam testa-
mentum, ita et we|potem ne-
ptemue ex eo necesse est mihi
uel heredem instituere uel ex-
heredare, ne forte, me uiuo filio
mortuo, succedendo in locum
eius nepos neptisue quasi agna-
tione rumpat testamentum ; id-
this proviso, that if they are
disinherited inter ceteros, some
legacy must be left them in order
that they may not seem to have
been pretermitted through forget-
fulness. Male self -successors, sons
and further lineal descendants,
are held not to be duly disin-
herited unless they are disin-
herited individually, thus: Beany
son that shall be born to me dis-
inherited.
§ 133. With children born after
the making of the will are classed
children who by succeeding to
the place of self-successors become
subsequent self-successors like the
afterborn. For instance, if a tes-
tator have a son, and by him a
grandson or granddaughter under
his power, the son being nearer
in degree alone has the rights of
self-successor, although the grand-
son and granddaughter are
equally in the ancestor's power.
But if the son die in the lifetime
of the testator, or by any other
means pass out of the testator's
power, the grandson and grand-
daughter succeed to his place,
and thus acquire the rights of
self-successors to the testator just
as if they were children born
after the making of the will.
§ 134. To prevent this subse-
quent rupture of my will, just
as a son must be either instituted
heir or disinherited individually
to make a will originally valid,
so a grandson or granddaughter
by a son must be either insti-
tuted heir or disinherited, lest
if the son die in the testator's
lifetime the grandson and grand-
daughter should take his place and
rupture the will in the same way
as if they had been children born
ii. §§ 123-137.] DE EXHEREDATIONE LIBERORVM 193
que lege lunia Vellaea prouisum
est, in qua simul exheredationis
modus notatur, ut uirilis sexus
(postumiy nominatim, femi-
nini uel nominatim uel inter
ceteros exheredentur, dum ta-
men iis qui inter ceteros exhe-
redantur aliquid legetur.
I Inst. 1. c.
§ 135. jE'mancipatos liberos
iure ciuili neque heredes insti-
tuere neque exheredare necesse
est, quia non sunt sui heredes ;
sed praetor omnes tain feminini
quam masculini sexus, si here-
des non instituantur, exhere-
dari iubet, uirilis sexus womi-
natim, feminini uel nominatim
uel inter ceteros ; quodsi neque
heredes instituti fuerint neque
ita ut supra diximus exhere-
dati, praetor promittit eis con-
tra tabulas bonorum posses-
sionem. Inst. 2, 13, 3.
§ 135 a. In potestate patm
non sunt qui cum eo ciuitate
Romana donati sunt nee in ac-
cipienda ciuitate Romana pater
petiit, ut eos in potestate habe-
re£, aut, si petiit, nou inpetrauit,
nam qui (m) potestatem patris
ab imperatore rediguntur nihil
diffe|runt a .
§ 136. Adoptiui filii quamdiu
manent in adojptione natura-
lium loco sunt ; emancipati
uero (a) patre adoptiuo neque
iure ciuili neque quod ad edi-
ctum praetoris pertinet, inter
liberos numerantur.
Inst. 2, 13,4.
§ 1 37. Qua ratione accidit ut
ex diuerso quod ad naturalem
parentem pertinet, quamdiu
quidem sint in adoptiua familia,
extraneorum numero habean-
tur ; si uero emancipati fuerint
after the execution of the will.
The lex Junia Vellaea allows this
and directs them to be disin-
herited like children born after
a will is executed, that is to say,
males individually, females either
individually or inter ceteros, pro-
vided that those who are disin-
herited inter ceteros receive some
legacy.
§ 135. Emancipated children
by civil law need neither be
appointed heirs nor disinherited
because they are not self-suc-
cessors. But the Praetor requires
all, females as well as males,
unless appointed heirs, to be
disinherited, males individually,
females either individually or
inter ceteros, and if they are
neither appointed heirs nor dis-
inherited as described, the Praetor
promises to give them the contra-
tabular possession.
§ 1 35 a. Children who are made
Roman citizens along with their
father are not subject to his
power, if at the time he either
omitted to petition for, or failed
to obtain, a grant of patria potes-
tas : for those who are subjected to
the father's power by the emperor
differ in no respect from those
under power from time of birth.
§ 136. Adoptive children, so
long as they continue in the
power of the adoptive father,
have the rights of his natural
children: but when emancipated
by the adoptive father they
neither at civil law nor in the
Praetor's edict are regarded as
his children.
§ 137. And conversely in
respect of their natural father as
long as they continue in the adop-
tive family they are reckoned as
strangers : but when emancipated
by the adoptive father they have
194 SVCCESSIO PER VNIVERSITATEM [n.§§ 123-137.
|_ d «
ab adoptiuo patre, time inci- the same rights in their natural
plant in ea causa esse qua futuri family as they would have had
essent, si ab ipso natural! patre if emancipated by their natural
{emancipati} fuissent. father (that is, unless either in-
Inst. 1. c. stituted heirs or disinherited by
him, they may claim the contra-
tabular succession).
§ 123. The praeterition of suus heres, another circumstance which
as well as testamenti factio affected the validity of a will, was at civil
law critical both at the time of making the will and at the time of
the testator's death and in the interval : but in later times this
defect of a will was healed by the praetor, who granted juxta-tabular
possession if the defect only existed at the first and third period,
Dig. 28, 3, 12 pr., so that practically the existence of a pretermitted
suus heres at the time of the testator's death was alone important.
The necessity of disinheriting a suus heres is grounded on the
principle of primitive law, that the child is co-proprietor with the
parent: hence, unless something occurs to divest the child of his
property, he will simply become sole proprietor by survivorship on
the death of his father. Dig. 28, 2, 11, ''In self-succession we have
a still more striking instance of an unbroken continuity of dominion,
for there appears to be no vesting by it of new property by inheritance,
but the heir is deemed to have been previously proprietor even during
the lifetime of the father. Hence the names filiusfamilias and pater-
familias imply a similar kind of legal relation to the patrimony, though
one is parent and the other child. Therefore the death of the parent
occasions no acquisition of new property by inheritance, but only an
increased freedom in the administration of already existing property.
Hence, even in the absence of testamentary institution, a self-suc-
cessor is proprietor : and it is no objection to this, that a parent has
the power of disinheriting a self-successor, for he also had the power
of putting him to death.'
The characteristic of the Roman will that it grounded a Universal
succession (unlike the English will which may be a merely Partial
definition of the succession), which is expressed in the maxim,
Nemo pro parte testatus, pro parte intestatus decedere potest, had
its historic origin, not probably in a perception of its manifold
utility, but in the primitive form of the will — a proposal, perhaps in
the form of an adoption, laid before the legislative assembly for its
sanction, § 101. The assembly could no more judge of the justice
of a proposed arrangement without having laid before it the whole
plan of succession than it could judge of the fairness of a contract by
inspection of a single paragraph. It could not therefore allow the
testator merely to lay before it certain partial modifications of the
ii. §§123-137.] POSTVMI SVI 195
intestate succession and leave the rest of his inheritance to follow the
general rules of intestacy, without further informing the assembly
of their operation. Nor were the testamentary powers, conferred by
the Twelve Tables, on which the mancipatory will was founded, in-
tended to be used so as to defeat the claims of sui heredes (Muirhead,
Koman Law, § 32). These considerations involve the rules respecting
the effect of Praeteritio. If the testator's dispositions were valid
in spite of Praeteritio, he would have it in his power to commit
a fraud upon the assembly by suppressing some element that was
material to enable them to form a judgement. Accordingly Prae-
teritio was made to defeat itself, in the case of the son by nullification
(inutilitas), in the case of other issue by Accretio, § 124. However,
although by the Civil law Praeterition avoided a will and was not cured
by the death of Praeteritus before Testator, yet Praetorian law only
regarded the date of Testator's death, and, if no Praeteritus was then
existent, counteracted the nullity of the will by Juxta-tabulation.
After the introduction of the mancipatory will the fraud against
the legislature would cease to be a motive for the rule requiring the
testator to define a Universal succession ; but the rule was retained for
the sake of continuity and in order to force the testator to have before
his mind a clear and systematic view of his intentions by requiring
their simultaneous expression in a single act. It secured the after-
born from oblivion and protected the son who was falsely supposed
to be dead from the consequences of the testator's error. At the
latest period the use of Codicils permitted to a certain extent the
partial and fragmentary disposition of a patrimony, but this was not
extended to the principal point, the heredis institutio. Ihering, § 53.
§ 124. Justinian abolished this accretion and equalized the sexes,
enacting that the pretermission of any suus heres or sua heres should
absolutely vacate a will, and entitle to bonorum possessio contra
tabulas, like the pretermission of the son, Cod. 6, 28, 4 ; Inst. 2, 13, 5.
§ 127. Justinian abolished this distinction and required that all
sui heredes should be disinherited individually like the son, ibid.
§ 130. Afterborn children (postumi), that is, children born after
the making of a will, are uncertain persons, and, by the general rule
that uncertain persons cannot be instituted or disinherited (incerta
persona heres institui non potest, Ulpian 22, 4), ought to be incapable
of institution or disinheritance, and, therefore, if they are sui heredes,
would necessarily invalidate a will, because every will is informal
when there exists a suus heres who is neither instituted nor dis-
inherited. If the suus heres was born in the lifetime of the testator,
the revocation of the will would not be an irremediable evil, because
the testator would still have it in his power to make another will,
and accordingly in this case the civil law left the general rule to
O 2,
196 SVCCESSIO PER VNIVERSITATEM [n. §§ 123-137.
operate. But if the suus heres were born after the death of the
testator, the evil would be irreparable, and the testator would die
intestate. To prevent this, the civil law made an exception to the
rule that an uncertain person cannot be instituted or disinherited,
and permitted the institution or disinheritance of any suus heres who
should be born after the death of the testator : and on the authority
of the celebrated jurist Aquilius Gallus, the inventor of a form of
acceptilation (3 § 170), this power was extended to the institution or
disinheritance of any afterborn grandchild of the testator whose
father should die in the interval between the making of the will and
the death of the testator. Dig. 28, 2, 29 pr. Gallus sic posse
institui postumos nepotes induxit : Si films meus vivo me morietur,
tune si quis mihi ex eo nepos sive quae neptis post mortem meam in
decem mensibus proximis, quibus filius meus moreretur, natus nata erit,
heredes sunto. ' Gallus Aquilius introduced the institution of after-
born grandchildren in the following manner : If my son die in my
lifetime, then let any grandson or granddaughter by him who may be
born after my death within ten months after the death of my son, be
my successor.' Such grandchildren are called Postumi Aquiliani.
In respect of the suus heres born after the making of the will but
in the lifetime of the testator, the case which the civil law left to the
operation of the general rule, it might certainly be sometimes possible
to make a new will after his birth, but it might sometimes be impossible
or highly inconvenient; and accordingly the lex Junia Vellaea, which
was probably passed at the close of the reign of Augustus, in its first
chapter permitted such sui heredes, being children of the testator, and
also grandchildren of the testator born after their father's death in the
lifetime of their grandfather, to be instituted or disinherited. Such
children and grandchildren were called Postumi Vellaeani primi
capitis. In its second chapter it permitted the institution or dis-
inheritance of another class of uncertain persons, viz. quasi-afterborn
children (postumorum loco) ; grandchildren, for instance, who were
born before the making of the will, but whose acquisition of the
character of sui heredes by the decease of their father is subsequent
to the making of the will.
Such grandchildren are called Postumi Vellaeani secundi capitis.
Besides the Postumi Aquiliani, the Postumi Vellaeani primi
capitis and the Postumi Vellaeani secundi capitis, the jurist Salvius
Julianus, who systematized the Edict, established the validity of the
institution or disinheritance of a fourth class, intermediate between
the Postumi Vellaeani of the first and second chapter: grandchildren,
namely, who, like the Vellaeani of the first chapter, were born after
the making of the grandfather's will, but who, like those of the
second chapter, were born before the death of their father. Such
ii. §§ 123-137.] POSTVMI SVI 197
grandchildren are not sui heredes to their grandfather at their birth,
but only by succession, that is by the subsequent death of their
father, like those of the second chapter, Dig. 28, 2, 29, 15.
The following is a conspectus of the different kinds of Postumi
sui, i. e. descendants who after the making of a will come into the
immediate power of a testator, whether (A) children or (B) grand-
children : to remoter descendants analogous principles will apply.
(A) Children are either
(a) Veritably afterborn, that is to say born after their father has
made his will, whether after their father's decease, in which case
the civil law treated them as certae personae, or in their father's
lifetime, in which case they form a subdivision of Velleiani primi
capitis :
(6) Or quasi-afterborn (loco postumorum), i. e. quasi-sons or quasi-
daughters by adrogatio, adoptio, legitimatio, in manum conventio.
(e) Another quasi-afterborn is the child who falls under the
immediate power of his soldier father, that is, becomes his suus
heres, in consequence of the death of his grandfather, in whose
power he previously was, after his father had made a will of castrense
peculium. Dig. 28, 2, 28, 1.
(B) Afterborn grandchildren who, as self-successors to their grand^
father, require institution or disinheritance in his will fall into four
classes, differentiated by the order of priority in which certain events
occur, as hereunder indicated :
POSTUMI AQUILIANI,
Will of grandfather : Death of father : Death of grandfather :
Birth of grandchild.
POSTUMI VELLAEANI PRIMI CAPITIS,
Will of grandfather : Death of father : Birth of grandchild : Death
of grandfather.
POSTUMI SALVIANI,
Will of grandfather : Birth of grandchild : Death of father : Death
of grandfather.
POSTUMI VELLAEANI SECUNDI CAPITIS,
Birth of grandchild : Will of grandfather : Death of father : Death
of grandfather.
The last two cases depend on the principle of successio. The
grandchild is at birth in the power of his grandfather, but is not his
suus heres, so long as there is an intervening ascendant — the father —
in the same power. On the death of the intervening ascendant the
grandchild is said to succeed to his place, and becomes by such
succession suus heres to his grandfather.
198 SVCCESSIO PER VNIVERSITATEM [IT. §§ 123-137.
The afterborn stranger, though incapable at civil law of being
appointed heir (§ 242), was relieved by the praetor who gave him
the juxta-tabular possession. Justinian gave him a civil title, Inst.
3, 9 pr.
§ 132. To the necessity of leaving some legacy to the disinherited
afterborn sua heres (and not, as Blackstone suggests, to the querela
inofficiosi) we may perhaps attribute the vulgar error in England
of the necessity of leaving the heir one shilling in order to cut him
off effectually. The querela inofficiosi testamenti was a process by
which a will formally valid could be either totally or partly upset
at the instance of certain near relations on the ground that the
claims of natural affection had been disregarded by the testator.
The querela inofficiosi was not barred by any legacy, however slight,
being left to such relation, but only by giving him one fourth of his
intestate portion (§ 152, comm. ; Sohm, § 113. For the changes
which Justinian made in the law on this subject see Inst. 2, 1 8, 1 , 2 ;
Novella, 18, 1, and 115). Thus even a legacy left to an afterborn
sua heres would be unavailing1 to save the will from being inoffi-
ciosum, unless it amounted to one fourth of her share by descent.
If no legacy at all were left her, the will would be informal and
absolutely void as against her, unless she was disinherited ; if less
than a fourth of her share were left, the will would not be abso-
lutely void but voidable, i e. liable to be altogether or in part over-
thrown if she chose to impeach it as inofficiosum.
§ 135. The Praeteritio of a descendant who is suus heres to
the testator or, but for emancipation, would be suus heres, entitles
the descendant to bonorum possessio. If the praeteritus is films
suus heres, the will is absolutely void and contra-tabular posses-
sion is an intestate succession : but if the praeteritus is emanci-
patus, the effect of contra-tabular possession is to divide the
inheritance between the praeteritus and other descendants who were
instituted heirs, excluding both instituted strangers and disinherited
sui heredes.
Contra-tabular possession might be claimed either by the prae-
teritus himself, or by any of the instituted sui heredes. For if an
instituted heir took less by his institution than he would by this
partial intestacy, it would be his interest to claim contra-tabular
possession, commisso per alium edicto, 'the edict having been
brought into operation by another,' viz. by another descendant, who
had been pretermitted.
The portions of the will that remained in force were :
(i) The exheredations : for such of the liberi as were duly dis-
inherited continued, as was mentioned, excluded from the inheri-
tance :
ii. §§ 138-146.] Q. M. TESTAMENTA INFIRMENTVR 199
(2) The pupillary substitutions, the nature of which will hereafter
(§ 179) be explained :
(3) Legacies given to certain conjunctae personae, e. g. legacies
to ascendants or descendants of the testator, or a bequest to the
wife of the dower which she had brought to her husband. If, in-
stead of making the conjuncta persona a legatee, the testator had
given his bounty in the form of a portion of the inheritance in which
the conjuncta persona was instituted heir, such institution continued
valid. The validity, however, of such legacies and institutions was
by a constitution of Antoninus Pius, Dig. 37, 5, 7, and 8 pr. sub-
jected to this limitation, that all the conjunctae personae together
could not take more than a virilis portio, i. e. they were not entitled
to more than fell to the lot of each contra-tabulant or claimant of
contra-tabular possession; with this further proviso, that any con-
juncta persona who is instituted heir of the inheritance in a portion
of the heritage may retain as much thereof as he would have obtained
by claiming contra-tabular possession, cf. Koby, vol. i, p. 250.
The partial intestacy produced by contra-tabular possession shows
that the rule which we have already quoted, nemo pro parte testa-
tus pro parte intestatus decedere potest, must be taken with some
reservation. Although a testator cannot voluntarily dispose of only
part of his heritage, such partial disposition may be introduced
against the testator's intention by the operation of law. The signi-
ficance of the rule is principally this : that if a testator only
names for a certain fraction of the inheritance, or if the fraction in
which one of several heirs is instituted lapses by his decease before
the testator's death, the portion which was undisposed of or lapsed
does not devolve, as it would in English law, to the heirs-at-law or
persons entitled by intestacy, but goes by accrual (accretio) to those
to whom the remainder of the inheritance is left.
QVIBVS MODIS TESTAMENTA INFIRMENTVR.
§138. Si quis post factum §138. If after making his will
testamentum adoptauerit sibi a man adopts as son either a
filium aut per populum eum person sui juris by means of the
qui sui iuris est, aut per prae- people (in comitia) or one sub-
torem eum qui in potestate Jecfc to the Power of an ascendant
parentis fuerit, omni modo by means of the Praetor, his will
testamentum eius rumpitur js mevitably revoked as it would
quasi agnations sui heredis. be1fby the subse<iuent birth of a
List 2, 17,1. self-successor'
§ 139. Idem iuris est si cui § 139. The same happens if
post factum testamentum uxor after making his will the testator
in manum conueniat, uel quae receives a wife into his hand, or
in manu fuit nubat ; nam eo marries a person who is in his
200 SVCCESSIO PER VNIVERSITATEM [n. §§ 138-146.
modo filiae loco ease incipit et
quasi sua.
§ 140. Nee prodest siue haec
siue ille qui adoptatus est
in eo testamento sit institu-
tus institutaue ; nam de ex-
heredatione eius superuacuum
uidetur quaerere, cum testa-
menti faciendi tempore suorum
heredum numero non fuerit.
§ 141. Filius quoque qui ex
priina secundaue mancipatione
manumittitur, quia reuertitur
in potestatem patriam, rumpitf
ante factum testamentum ; nee
prodest, (si) in eo testamento
heres institutus uel exheredatus
fuerit.
§ 142. Simile ius olim fuit
in eius persona cuius nomine
ex senatusconsulto erroris
causa probatur, quia forte ex
peregrina uel Latina quae per
errorem quasi ciuis Romana
uxor ducta esset natus esset ;
nam siue heres institutus esset
a parewte siue exheredatus,
siue uiuo patre causa probatct
siue post mortem eius, omni
modo quasi agnatione rumpe-
bat testamentum.
§ 143. Nunc uero ex nouo
senatusconsulto quod auctore
diuo Hadriano factum est, si-
quidem uiuo patre causa pro-
batur, aeque ut olim omni
modo rumpit testamentum ; si
uero post mortem patris, prae-
teritus quidem rumpit testa-
mentum, si uero heres in eo
scriptus est uel exheredatus,
non rumpit testamentum ; ne
scilicet diligenter facta testa-
menta rescinderentur eo tern-
pore quo renouari non pos-
sent.
§ 144. Posteriore quoque
hand, as she thereby acquires the
status of a daughter and becomes
his self -successor.
§ 140. Nor does it avail to pre-
vent the rupture that such a wife
or adopted son was in that will
instituted heir, for as to disin-
heriting them, not having been
self-successors when the will was
made, the question could not then
have been material.
§ 141. So a son manumitted
after the first or second sale re-
verts into the power of his father
and revokes a previous will, nor
does it avail that he is therein
appointed heir or disinherited.
§ 142. The same rule formerly
held of the son in whose behalf
the decree of the senate allows
proof of error, if he was born
of an alien or Latin mother
who was married in the mistaken
belief that she was a Eoman: for
whether he was appointed heir
by his father or disinherited, and
whether the error was proved in
his father's life or after his death,
in every case the will was revoked
as by the subsequent birth of a
self-successor.
§ 143. Now, however, by a
recent decree of the senate, made
on the proposition of the late
emperor Hadrian, if the father is
alive when the error is proved,
the old rule obtains and the will
is in every case avoided ; but
when the error is proved after the
father's death, if the son was
passed over in silence, the will is
revoked ; but if he was appointed
heir or disinherited the will is
not revoked ; in order that care-
fully executed wills should not
be rescinded at a period when re-
execution is impossible.
§ 144. A subsequent will duly
IT. §§ 138-146.] Q. M. TESTAMENTA INFIRMENTVR 201
testamento quod iure factum
est superius rumpitur. nee in-
terest an extiterit aliquis ex eo
heres, an non extiterit ; hoc
enim solum spectatur, an exi-
stere potuerit. ideoque si quis
ex posteriore testamento quod
iure factum est aut noluerit
heres esse, aut uiuo testatore
aut post mortem eius antequam
hereditatem adiret decesserit,
aut per cretionem exclusus fue-
rit, aut condicione sub qua
heres mstitutus est defectus sit,
aut propter caelibatum ex lege
Julia summotus fuerit ab here-
ditate : quibus casibus pater
familias intestatus moritur,
nam et prius testamentum non
ualet ruptum a posteriore, et
posterius aeque nullas uires
habet, cum ex eo nemo heres
_extiterit. Inst. 2, 17, 2.
§ 145. Alio quoque modo
testamenta iure facta infirmaw-
tur, ueluti (cum) is qui fecerit
testamentum capite derninutus
sit; quod quibus modis accidat,
primo commentario relatum
est. Inst. 2, 17, 4.
§ 146. Hoc autem casu inrita
fieri testamenta dicemus, cum
alioquin et quae rumpuntwr
inrita fiant, (et quae statim ab
initio non iure fi.unt inrita
sint ; sed et ea quae iure facta
suirt et postea propter capitis
deminutionem inrita fiunt}
possunt nihilo minus rupta
dici. sed quia sane commodius
erat singulas causas singulis
appellationibus distingui, ideo
quaedam non iure fieri dicuntur,
quaedam iure facta rumpi uel
inrita fieri.
Inst. 2, 17, 5.
executed is a revocation of a prior
will, and it makes no difference
whether an heir ever actually
takes under it or no; the only
question is, whether one might.
Accordingly, whether the heir
instituted in a subsequent will
duly executed declines to be
heir, or dies in the lifetime of
the testator, or after his death
before accepting the inheritance,
or is excluded by expiration of
the time allowed for deliberation,
or by failure of the condition
under which he was instituted, or
by celibacy as the lex Julia pro-
vides ; in all these cases the tes-
tator dies intestate, for the earlier
will is revoked by the later
one, and the later one is inope-
rative, since no one becomes heir
under it.
§ 145. There is another event
whereby a will duly executed may
be invalidated, namely, the tes-
tator's undergoing a loss of status :
how this may happen was ex-
plained in the preceding book.
§ 146. In this case the will
may be said to be rescinded ; for
although both those wills that
are revoked and those that are
not from the first made in proper
form may be said to be rescinded,
and those that are made in proper
form but subsequently annulled
by loss of status may be said to
be revoked, yet as it is convenient
thatdifferentgrounds of invalidity
should have different names to
distinguish them, we will say
that some wills are not made in
proper form, others made in pro-
per form are either revoked or
rescinded.
§ 138. A will may be void from the first because it is not duly
202 SVCCESSIO PER VNIVERSITATEM [n. §§ 138-146.
made — testamentum nullum, injustum, non jure factum — or it may
be avoided by some subsequent circumstance— testamentum ruptum
§§ 138, 144, irritum § 146, destitutum — or it may be upset as being
unduteous — inofficiosum. A will is destitutum, 'cum ex eo nemo
heres extiterit,' § 144. A will may be revoked or ruptured by a sub-
sequent will, but not by a codicil. The tearing up or destruction of
a will does not revoke it, unless this is done by the testator ' animo
revocandi.' See § 151, comm. The innovations of Justinian changed
the effects of adoption. Under his enactment, if a child is adopted
by an ascendant the old rules obtain ; but a person adopted by a
stranger only acquires rights in the adoptive family in case of
the adopter's intestacy, and therefore need not be instituted or
disinherited by the adopter ; he retains, however, his rights in
his natural family, and therefore must be instituted or disinherited
in the will of his natural parent. 1 §§ 97-107, comm.
§ 139. By English law the only circumstance by which a will is
avoided (besides revocation, cancellation, execution of a later will)
is the marriage of the testator, and this operates universally, irre-
spectively of the birth of children. Marriage without manus, which
was usual in the time of Gaius, had no effect on a will.
§ 140. This was reversed before the time of Justinian, for we find
in Dig. 28, 3, 18 that the institution of the future adoptive son saves
a will from being ruptured by adoption. Indeed, considering that
the object of the lex Vellaea was to save wills from rupture, we may
be surprised that the extension of its provisions from the natural
postumi to the artificial postumi or quasi postumi had not been
established in the days of Gaius.
§ 141. Cf. 1 §§ 132-136.
§ 142, As to erroris causae probatio see 1 § 67.
BONOEVM POSSESSIO SECVNDVM TABVLAS.
§ 147. Nontamen per omnia § !47. Wills are not altogether
inutilia sunt ea testamenta inoperative either when originally
quae uel ab initio non iure informal or when though at first
facta sunt uel iure facta postea m*de in P™Per fo™ ^ were
inrita facta aut rupta sunt. subsequently rescinded or re-
,• • • voked ; for if the seals ot seven
nam si septem tedium sigms ^^ are ^ the ^
signata sint testamenta, potest mentaryheir is entitled todemand
scnptus heres secundum tabu- possession in accordance with the
las bonorum possessionem pe- will> if the testator was a citizen
tere, si modo defunctus testator of Rome an(j sui juris at the time
et ciuis Romanus et suae pote- Of his death ; but if the cause of
statis mortis tempore fuerit. nullity was, say, the testator's loss
nam si ideo inritum factum sit of citizenship, or loss of liberty,
testamentum, quod puta ciui- or adoption and he dies subject
ii. §§ 147-151.] BON. POSS. SECVNDVM TABVLAS 203
tatem uel etiam libertatem
testator amisit, aut is in ado-
ptionem se dedit (et) mortis
tempore in adoptiui patris po-
testate fuit, non potest scriptus
heres secundum tabulas bono-
rum possessionem petere.
Inst.2, 17,4.
§ 148. (Itaque qui} secun-
dum tabulas testamenti quae
aut statiin ab initio non iure
factae sint, aut iure factae
postea ruptae uel inritae erunt,
bonorum possessionem acci-
piunt, si modo possunt heredi-
tatem optinere, habebunt bono-
rum possessionem cum re; si
uero ab iis auocari hereditas
potest, habebunt bonorum pos-
sessionem sine re.
§ 149. Nam si quis heres iure
ciuili institutus sit uel ex primo
uel ex posteriore testamento,
uel ab intestato iure legitimo
heres sit, is potest ab iis here-
ditatem auocare ; si uero nemo
sit alius iure ciuili heres, ipsi
retinere hereditatem possunt,
nee ullum ius aduersus eos
habent cognati qui legitimo
iure deficiuntur.
§ 149 a. AliquaraZo tamen,
sicut supra | quoque notaui-
mus, etiam legitimis heredibus
potiores scripti habentur, veluti
si ideo non iure \ factum sit
testamentum, quod familia non
uenierit aut nun cupationis
uerba testator locutus non sit ;
j «(/nati petant heredi-
tatein 1 ex coustitutione
§150.
lulia
ueri-
-lege
possessores-
eja lege bona caduca fiunt et ad
populum deferri | iubentur, si
defuncto nemo .
to his adoptive father's power, the
heir instituted in the will is barred
from demanding possession in ac-
cordance with the will.
§ 148. Persons granted posses-
sion in accordance with a will
either originally not made in due
form or originally made in due
form and subsequently revoked or
rescinded, have, if only they can
maintain their right to the inheri-
tance, effective possession of it
(bonorum possessio cum re) ; but if
they can be deprived of the property
by an adverse claimant, the grant
of possession to them is ineffective
(bonorum possessio sine re),
§ 149. For an heir instituted
according to jus civile either by
an earlier or later will, or a statu-
tory heir by intestacy, can evict
the mere bonorum possessor ac-
cording to the will from the in-
heritance; but in default of such
claim on the part of a civil heir,
such possessor according to the
will can retain the inheritance, and
cannot be deprived of it by cog-
nates, these having no civil title.
§ 149 a. Sometimes, however,
an heir with a civil title is post-
poned to an irregularly appointed
heir ; for instance, if the irregu-
larity was only the absence of
mancipation or nuncupatory pub-
lication, since if the agnates of the
deceased claim the inheritance,
they may be repelled by the plea
of fraud, according to the consti-
tution of the Emperor Antoninus.
§ 150. Possession according to
the will is not defeated by the lex
Julia, underwhich law a condition
of caducity or devolution to thefis-
cus is the absence of every kind of
heir, whether civil or praetorian.
204 SVCCESSIO PER VNIVERSITATEM [n. §§ 147-151.
§ 151. | Potest ut iure facta
testamenta contraria uoluntate
| infirmeTitur. apparet (autem)
non posse QX eo solo infirma ri
testamentum, quod postea te-
stator id noluerit ualere, usque
adeo ut si linum eius incident,
nihilo minus iure ciuili ualeat.
quin etiam si deleuerit quoque
&ut conbusserit tabulas testa-'
menti, nihilo minus {non} de-
sinent ualere quae ibi fuerunt
scripta, licet eorum probatio
difficilis sit.
§ 151 a. Quid ergo est? si
quis ab intestato bonorum pos-
sessionem petieri£ et is | qui ex
eo testamento heres est petat
hereditatem, 1 |-
perueniat hereditas ; et hoc ita
rescripto imperatoris Antonini
significatur.
§ 151. A validly executed will
may be invalidated by a contrary
expression of will : but a will is
not, it is clear, invalidated by the
mere intention of revocation. And
consequently, in spite of the testa-
tor's cutting the strings by which
it is tied, it nevertheless, at civil
law, continues valid : and his era-
sure or burning of the dispositions
does not render them invalid,
though it makes them difficult of
proof.
§ 151 o. What then is the
result ? If a claimant demand
bonorum possessio by intestacy,
and a testamentary heir under
such circumstances demand the
civil inheritance under the will,
the latter is repelled by the plea
of fraud: and if no one should
demand bonorum possessio by
title of intestacy, the testamentary
heir is superseded by the fiscus
as unworthy of the succession in
order to carry the testator's in-
tention of excluding him into
effect : and this was enacted by a
rescript of the Emperor (Marcus
Aurelius) Antoninus.
§ 147. The validity of a testament implies, strictly speaking, the
continuance of a testator's intention, and therefore of his capacity of
intention (testamenti factio), from its first declaration to the moment
of his death. Accordingly an intermediate capitis diminutio avoided
the will invalid (irritum) at civil law, § 146. The praetor, however,
only looked at the first and last moments, and, if at these periods the
testator had testamenti factio, sustained his intentions by granting
possession according to the will, although he had undergone capitis
diminutio minima in the intervening period.
So at civil law a will was revoked (ruptum) by after-birth (agnatio)
of a self- successor, § 138 ; but if he died before the testator, the
praetor sustained the will by granting possession according to the
will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus
praeteritus, vivo testatore natus, decessit : licet juris scrupulositate
nimiaque subtilitate testamentum ruptum videatur, attamen si
ii. §§ 147-151.] BON. POSS. SECVNDVM TABVLAS 205
signatum fuerit testamentum, bonorum possessionem secundum
tabulas accipere heres scriptus potest, remque obtinebit, ut et divus
Hadrianus et Imperator noster rescripserunt. In order that posses-
sion in accordance with the will, granted when a will had been
avoided (irritum) by intervening loss of capacity, might be efficacious
(cum re), i. e. not defeasible by the claimant entitled at civil law by
intestacy, it was necessary that the testator on reacquiring capacity
should confirm his will by a codicil or other writing (codicillis aut
aliis litteris), Dig. 37, 11, 11, 2.
§ 148. There was no ipso jure, or necessarius, bonorum possessor,
corresponding to the heres necessarius, § 152, with whom delatio
and adquisitio hereditatis were coincident : all bonorum possessores
corresponded to the other class of heres, the heres extraneus or
voluntarius, with whom adquisitio was distinct from delatio here-
ditatis, and required a voluntary act (aditio). That is to say, the
person called (vocatus) by the praetorian edict to the succession
forfeited his right to succeed unless he made his claim (agnitio,
petitio, admissio bonorum possessionis) within a certain period, for
ascendants and descendants a year, for others 100 dies utiles from the
date of the vocatio (delatio). On the claim under the edict being made,
the grant (datio) of bonorum possessio followed as a matter of course
without any judicial investigation (causae cognitio). It was a mere
formality, a certificate of the magistrate, the praetor or praeses
provinciae, that the agnitio had been made within the allotted
period, before the expiration of the term allowed for deliberation.
If any real controversy arose, it was decided by one of two actions,
hereditatis petitio, or the Interdict Quorum bonorum. If the
claimant relied on his title at civil law, he sued by hereditatis
petitio ; if he relied on the title given him by the praetorian edict,
he sued by the Interdict Quorum bonorum. See 4 §144. If defeated
in either of these proceedings, he gained nothing by having obtained
the formal grant of praetorian succession — he had only bonorum
possessio sine re.
§ 149 a. A praetorian title was, as a general rule, sine re, if a civil
title was opposed to it, but the constitution of the Antonine emperor,
probably Marcus Aurelius, mentioned here and in § 120, made an
important inroad on this principle.
§ 150. Originally when a heritage was vacant from the failure of
intestate successors, Ulpian 28, 7, or from the neglect of an heir to
enter upon it, § 52, any stranger might take possession and acquire by
usucapio, but this right was rendered ineffectual by Hadrian's Senatus-
consultum, § 57. The lex Julia de Maritandis ordinibus, which is
the statute here referred to, was passed A. D. 4 ; for an account of its
purport and of the meaning of the term caduca see § 190 and § 206,
206 SVCCESSIO PER VNIVERSITATEM [ir. §§ 147-151.
comm. Besides its rights to caduca under this statute the public
treasury or that of the Emperor could claim all inheritances left
without an heir (bona vacantia). The state did not become necessary
successor (ipso jure) but had the delatio (ad populum deferri jubentur),
i. e. had the right of deliberation and acceptance or repudiation, Inst.
3, 11, 1. As universal successor the state could recover from the
unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could
transfer its rights to a purchaser, as if the transfer were made under
the Sc. Trebellianum, 1. c. 54 pr. (cf. § 253).
The treasury was bound to pay all codicillary legacies and trusts :
and succeeded to all the obligations active and passive, in other
words, to all the personal rights and personal duties, of the heritage-
leaver : but like other successors in later times, under the law of
Justinian, might, by taking advantage of the Benefice of inventory,
confine its liability to the extent of the assets, §§ 158-162, comm.
In the event of the repudiation of the succession by the Fiscus, the
goods were sold for the benefit of creditors. Vangerow, § 564.
Gains probably here means, though the MS is defective, that
although a grant of bonorum possessio might be rendered ineffective
(sine re) in consequence of the superior claims of a person with
a civil title by whom the possessor could be evicted, the fiscus had
no title to an inheritance under the lex Julia, if the deceased, though
without a civil successor, had left a bonorum possessor. (Cf. note on
§ 150 in Muirhead's Gaius.)
§ 151. The Eupture (ruptio) of a will was produced by two
circumstances: (i) Agnatio postumi, the subsequent birth of a self-
successor, or the coming into existence of a quasi postumus, § 1 39 :
and (2) Revocation, §§ 138-146, comm. On the principle, Nihil tarn
naturale est quam eo genere quidque dissolvere quo colligatum est
(Dig. 50, 17, 35), the most formal and originally the only mode of
revoking a will would be the execution of a subsequent will. Another
mode of Revocation sanctioned by Justinian depended on two con-
ditions: a declaration attested by three witnesses or made in the
form of a record or protocol deposited in the archives of a court, and
the expiration of ten years from the date of the execution of the will.
Cod. 6, 23, 27.
The mere cancellation or obliteration of a will, with the intention
of revoking it, was an informal Revocation and left the will valid at
civil law : the will, however, was not allowed to hold good against
this evidence of the testator's change of intention. The rescript of
Marcus Aurelius A. D. 166 to this effect, to which Gaius alludes
§ 151 a, is preserved in the Digest, 28, 4, 3.
Justinian ordained that a will should be perfectly revoked and
completely avoided by the cutting of the cords, or removal of the
ii. §§ 147-151.] BONA EREPTORIA 207
seals, or other intentional destruction of the outward signs of its due
solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Viet.
c. 26 § 20 and interpreted in the celebrated case of Lord St. Leonards,
L. K. 1 P. D. 154, seems to be in conformity with Eoman law on the
subject of unintentional erasure or destruction of a will.
§ 151 a. Ereption for indignitas, an institution which survived in the
legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished
from the lapse of a testamentary disposition under the lex Julia (cadu-
cum), §§185-190, comm. In the latter case there was want of capacitas,
as opposed to want of testamenti factio passiva, on the part of honoratus.
In the case of the indignus there was not even incapacitas but only
liability to deprivation. Some grounds of Ereption were common to
the heir and legatee, others peculiar to the heir, others peculiar to the
legatee. The forfeiture of the inheritance or legacy was sometimes
in favour of the Fiscus, sometimes in favour of other persons, usually
of those who would have taken but for the disposition in favour of
indignus.
Instances of grounds for which either heir or legatee forfeited their
interest to the Fiscus were : undertaking a secret unlawful trust,
coercion of the testator in respect of his will, killing the testator or
neglect to avenge his death, wrongful impeachment of his will for
inofficiositas, &c.
Grounds for which their shares were forfeited to other persons than
the Fiscus were : refusal of the office of guardian when the prospect
of the discharge of this duty was the motive of the testator's bounty,
refusal to undertake the education of an infant child of the testator,
neglect of the testator's burial, &c.
Grounds on which the heir alone forfeited the whole or part of his
inheritance to the Fiscus were : concealment of a portion of the here-
ditaments in order to defraud a legatee (whereupon the heir forfeited
the fourth which he was entitled to retain from such legacy by the
lex Falcidia), the discovery that though putative son he was not
a genuine son of the testator, the deliberate cancellation of his name
by the testator, the imperfect execution of a subsequent will in
which he was excluded from the heritage, a codicillary declaration
of his unworthiness to inherit, &c.
Grounds on which an heir forfeited his portion to persons other
than the Fiscus were : neglect on the part of a mother to demand
a guardian for her infant child, a second marriage by a mother who
herself is guardian before she has caused another guardian to be sub-
stituted, neglect of a lunatic testator, neglect to ransom the testator,
criminal prosecution of testator, &c.
Grounds exclusively affecting a legatee and that in favour of the heir
are theft from the heritage and concealment of the testator's will.
208 SVCCESSIO PER VNIVERSITATEM [n.§§ 152-173.
DE HEREDVM QVALITATE ET DIFFERENTIA.
§ 152. Heredes autem aut
necessarii dicuntur aut sui et
necessarii aut extranei.
Inst. 2, 19 pr.
§ 153. Necessarius heres est
seruus cum libertate heres in-
stitutus, ideo sic appellatus,
quia siue uelit siue nolit, omni
modo post mortem testatoris
protinus liber et heres est.
Inst. 2, 19,1.
§ 154. Vnde qui facultates
suas suspectas habet, solet
seruum suum primo aut se-
cundo uel etiam ulteriore gradu
liberum et heredem instituere,
ut si creditoribus satis non
fiat, potius huius heredis quam
ipsius testatoris bona uenean£,
id est ut ignominia quae accidit
ex uenditione bonorum hunc
potius heredem quam ipsum
testatorem contingat ; quam-
quam apud Fufidium Sabino
placeat eximendum eum esse
ignominia, quia non suo uitio
sed necessitate iuris bonorum
uenditionem pateretur; sed alio
iure utimur. Inst. 1. c.
§ 155. Pro hoc tamen in-
commodo illud ei commodum
praestatur, ut ea, quae post
mortem patroni sibi adquisierit,
siue ante bonorum uenditionem
siue postea, ipsi reseruentur ;
et quamuis pro portione bona
uenierint, iterum ex hereditaria
causa bona eius non uenient,
nisi si quid ei ex hereditaria
causa fuerit adquisitum, uelut
si f Latinus adquisierit, locu-
pletior factus sit ; cum cete-
rorum hominum quorum bona
uenierint pro portione, si quid
§ 152. Heirs are either neces-
sary successors or necessary self-
successors or external successors.
\
§ 153. A necessary successor is
a slave instituted heir with free-
dom annexed, so called because,
willing or unwilling, without any
alternative, on the death of the
testator he immediately has his
freedom and the succession.
§154. For when a man's affairs
are embarrassed, it is common for
his slave, either in the first place
(institutio) or as a substitute in
the second or any inferior place
(substitutio), to be enfranchised
and appointed heir, so that, if the
creditors are not paid in full, the
property may be sold rather as be-
longing to this heir than to the
testator, the ignominy of insol-
vency thus attaching to the heir in-
stead of to the testator; though, as
Fufidius relates, Sabinus held that
he ought to be exempted from ig-
nominy, as it is not his own fault,
but legal compulsion, that makes
him insolvent; this, however, is
not in our view the law.
§ 155. To compensate this dis-
advantage he has the advantage
that his acquisitions after the
death of his patron, and whether be-
fore or after the sale, are kept apart
for his own benefit, and although
a portion only of the debts is
satisfied by the sale, he is not
liable to a second sale of his after-
acquired property for the debts of
the testator, unless he gain any-
thing in his capacity as heir, as if
he inherit the property of a Lati-
nus Junianus [another freedman
of the testator] ; whereas other
persons, who only pay a dividend,
ii. §§152-1 73.] DE HEREDVM QVALITATE
postea adquirant, etiam saepius
eorum bona uemre sclent.
Inst. 1. c.
§ 156. Sui autem et neces-
sarii heredes sunt uelut filius
filiaue, nepos neptisue ex filio,
(ety deinceps ce£eri qui modo
in potestate morientis fuerunt.
sed uti nepos neptisue su^s
heres sit, non sufficit eum in
potestate aui mortis tempore
fuisse, sed opus est ut pater
quoque eius uiuo patre suo
desierit suus heres esse aut
morte interceptus aut qualibet
ratione liberatus potestate ; turn
enim nepos neptisue in locum
sui patris succedunt.
Inst. 2, 19, 2.
§ 157. Sed sui quidem heredes
ideo appellantur,quia domestici
heredes sunt et uiuo quoque
parente quodammodo Domini
existimantur ; undo etiam si
quis intestatus ' mortuus sit,
prima causa est in successiqne
liberorum. necessarii uero ideo
dicuntur, quia omni modo,
(sine} uelint si\ie (nolint, tarn)
ab intestate quam ex testa-
mento heredes fiunt. Inst. 1. c.
§ 158. Sed his praetor per-
inittit abstinere se ab here-
ditate, ut potius parentis bona
ueneant. Inst. 1. c.
§ 159. Idem iuris est et (m)
uxoris persona quae in manu
est, quia filiae loco est, et in
nuru quae in manu filii est,
quia neptis loco est.
§ 160. Quin etiam similiter
abstinendi pofestatem facit
praetor etiam ei qui in causa
on subsequently acquiring any
property, are liable to subsequent
sales again and again.
§ 156. Sui et necessarii heredes
are such as a son or daughter, a
grandson or granddaughter by
the son, and further lineal de-
scendants, provided that they
were under the power of the an-
cestor when he died. To make
a grandson or granddaughter self-
successor it is, however, not
sufficient that they were in the
power of the grandfather at the
time of his death, but it is further
requisite that their father in the
life of the grandfather shall have
ceased to be self-successor,
whether by death or by any
mod.e of liberation from parental
power, as the grandson and
granddaughter then succeed to
the place of the father.
§ 157. They are called sui
heredes because they are family
heirs, and even in the lifetime of
the parent are deemed to a certain
extent co-proprietors ; wherefore
in intestacy the first right of
succession belongs to the children.
They arp called necessary, because
they have no alternative, but,
willing or unwilling, both in
testacy and intestacy, they be-
come heirs.
§ 158. The praetor, however,
permits them to abstain from the
succession, and leave the estate of
the ancestor to be sold as an in-
solvent one.
§ 159. The same rule governs
a wife in the hand of a husband,
for she is on the footing of a
daughter, and a son's wife in the
hand of the son, for she is on the
footing of a granddaughter.
§160. A similar power of absten-
tion is granted by the praetor to
a person held in mancipium when
210 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
mancipii est, (si) cum libertate
heres institutus sit, quamuis
necessarius, non etiam suus
heres sit, tamquam seruus.
§ 161. Ceteri qui testatoris
iuri subiecti non sunt extranei
heredes appellantur. itaque
liberi quoque nostri qui in
potestate nostra non sunt here-
des a nobis instituti [sicut] ex-
tranei uidentur. qua de causa
et qui a matre heredes insti-
tuuntur eodem numero sunt,
quia feminae liberos in pote-
state non habent. serui quo-
que qui cum libertate heredes
instituti sunt et postea a domi-
no manumissi, eodem numero
habentur. Inst. 2, 19. 3.
§ 162. Extraneis autem here-
dibus deliberandi potestas data
est de adeunda hereditate uel
non adeunda. Inst. 2, 19, 5.
& 163. Sed siue is cui absti-
• j. . .
nendi potestas est inmiscuerit
se bonis hereditariis, siue is cui
de adeunda (Jiereditate} de-
liberare licet, adierit, postea
relinquendae hereditatis facul-
tatem non habet, nisi si minor
sit annorum xxv. nam huius
aetatis hominibus, sicut in cete-
ris omnibus causis deceptis, ita
etiam si temere damnosam here-
ditatem susceperint. praetor
succurrit. scio quidem diuum
Hadrianum etiam maiori xxv
annorum ueniam dedisse, cum
post aditam hereditatem grande
aes alienum quod aditae here-
ditatis tempore latebat ap-
paruisset. Inst. 1. c., and 6.
§ 164. Extraneis heredibus
solet cretio dari, id est finis
deliberandi, ut intra certum
temp us uel adeant hereditatem,
instituted heir with freedom an-
nexed, although he is simply a
necessary successor and not also
a self-successor, mancipation being
assimilated to servitude.
§ 161. Those who were not
subject to the testator's power
are called strangers, or external
heirs. Thus children not in our
power, if instituted heirs, are
deemed strangers ; and for the
same reason children instituted
by their mother belong to this
class, because women are not
invested with power over their
children. Slaves instituted heirs
with freedom annexed, and sub-
sequently manumitted, belong to
the same class.
§ 162. External heirs have the
right of deliberating whether they
will or will not enter on an
inheritance.
§ 163. But if either a person
who has the power of abstention
or a person who has the power of
deliberation as to his acceptance
of the inheritance, interferes with
the property belonging to the in-
heritance, he has no longer the
right of relinquishing the inheri-
tance, unless he is a minor un-
der twenty-five years of age ; for
minors, both when they take any
other injudicious step, and when
they incautiously accept a disad-
vantageous inheritance, obtain re-
lief from the praetor. The late
Emperor Hadrian even relieved a
person who had attained his ma-
jority, when, after his acceptance
of an inheritance, a great debt,
unknown at the time of accept-
ance, had come to light.
§ 164. External heirs are com-
monly given by the will a pre-
scribed term for decision (cretio),
that is, a definite delay for deli-
beration, within which time they
IT. §§ 152-173.] DE HEREDVM QVALITATE
211
uel si non adeant, temporis fine
summoueantur. ideo autem
cretio appellata est, quia cernere
est quasi decernere et consti-
tuere.
§ 165. Cum ergo ita scriptum
sit HEEES TITIVS ESTO, adicere
debemuscERNiTOQVE IN CENTVM
DIEBVS PROXIMIS QVIBVS SCIES
POTERISQVE. QVODNI ITA CRE-
VERIS, EXHERES ESTO.
§ 166. Et qui ita heres in-
stitutus est, si uelit heres esse,
debebit intra diem cretionis
cernere, id est haec uerba dicere
QVOD ME P. MEFIVS TESTAMENTO
SVO HEREDEM INSTITVIT, EAM
HEREDITATEM ADEO CERNOQVE.
quodsi ita non creuerit, finite
tempore cretionis excluditur ;
nee quicquam proficit, si pro
herede gerat, id est si rebus
hereditariis tamquam heres
utatur. Inst. 2, 19, 7.
§ 167. At is qui sine cretione
heres insti£utus sit, aut qui ab
intestate legitimo iure ad here-
ditatem uocatur, poteti aut cer-
nendo aut pro herede gerendo
uel etiam nuda uoluntate sus-
cipiendae hereditatis heres fieri ;
eique liberum est quocumque
tempore uoluerit, adire here-
ditatem ; (sec?) solet praetor
postulantibus hereditariis cre-
ditoribus tempus constituere,
intra quod si ueKt adeat here-
ditatem, si minus, ut liceat
creditoribus bona defuncti uen-
dere.
§ 168. Sicui autem {qui}
cum cretione heres institutus
est, nisi creuerit hereditatem,
non fit heres, ita non aliter ex-
must formally accept, and in de-
fault of formal acceptance are
barred. Cretio is so called because
the word cernere is equivalent to
decernere, that is, to come to a
determination and resolution.
§ 165. Accordingly, after the
words, ' Titius, be thou my heir,'
we ought to add, 'and formally
declare thy acceptance within
a hundred days in which thou
knowest of thy institution and
hast power to declare whether
thou accept ; or in default of so
declaring be thou disinherited.'
§ 166. And the heir thus
appointed, if he wish to inherit,
must within the term prescribed
solemnly declare his decision in
the following words : ' Whereas
Publius Mevius in his will has
made me his heir, that inheritance
I hereby accept and adjudge to
myself.' In default of such
formal declaration, the elapsing
of the period allowed shuts him
out from the inheritance, and it
is of no avail that he behave as
heir, that is, deal with the estate
of the deceased as if he were heir.
§ 167. In the absence of a pre-
scribed term for deliberation in
the case of testamentary succes-
sion, and in the case of a statutory
right of succession on intestacy,
a man takes the inheritance either
by formal declaration, or by be-
having as heir, or by informal
declaration, and is not barred
from accepting by any lapse of
time ; but it is usual for the
praetor, at the demand of the
creditors of the deceased, to ap-
point a period, on the expiration of
which without his acceptance the
creditors are permitted to put up
the estate of the deceased for sale.
§ 168. But just as a person
who is instituted heir subject to
a prescribed term for decision
does not actually become heir
212 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
cluditur, quam si non creuerit
intra id tern pus quo cretio finita
eat ; itaque licet ante diem cre-
tionis constituent hereditatem
non adire, tamen paenitentia
actus superante die cretionis
cernendo heres esse pptest.
§ 169. At is qui sine cretione
heres institutus est, quiue ab
intestate per legein uocatur,
sicut uoluntate nuda heres fit,
ita et contraria destinatione
statim ab hereditate repellitur.
§ 170. Omnis autem cretio
certo tempore constringitur. in
quam rem tolerabile tempus
uisum est centum dierum. po-
test tamen nihilo minus iure
ciuili au.t longius aut breuius
tempus dari ; longius tarnen
inferdum praetor coartat.
§ 17}.. Et quamuis omnis
cretio certis diebus constringa-
tur, tamen alia cretio uulgaris
uocatur, alia certorum dierum :
uulgaris ilia, quam supra ex-
posuimus, id est in qua ad-
icfuntur haec uerba QVIBVS
SCIET POTERITQVE ; certorum
dierum, in qua detractis his
uerbis cetera scribuntur.
§ 172. Quarum cretionum
magna differentia est. nam
uulgari cretione data nulli dies
conputantur, nisi quibus scierit
quisque se heredem esse insti-
tutum et possit cernere. cer-
torum uero dierum cretione da-
ta etiam nescient i se heredem
institutum - esse numerantur
dies continui ; item ei quoque
qui aliqua ex causa cernere
prohibetur, et eo amplius ei
unless he makes a formal declara-
tion of his acceptance, so the
only way he is excluded from
the inheritance is by his not thus
declaring within the last day of
the appointed term ; and though,
pending the term, he may have
made up his mind to disclaim,
yet if he change his mind before
the time is expired and formally
declare his acceptance, he can
become heir.
§ 1 69. If no term is prescribed
in the institution, or in the case
of a statutory right of succession
on intestacy, just as an informal
declaration makes him heir, so the
contrary declaration immediately
bars him from the succession.
§ 170. Every prescribed term
of deliberation has a certain limit,
and a reasonable limit is held to
be a hundred days, yet by the
civil law a longer or shorter period
is allowed to be fixed, though a
longer period is sometimes short-
ened by the praetor.
§ 171. Although, however, the
time of deliberation is always
limited to .certain days, yet one
mode of limitation is called ordi-
nary, the other determinate ; the
ordinary being that above in-
dicated, namely, with the addition
of the words ' in which he knows
and is able ' ; determinate that in
which these words are omitted.
§ 172. These modes are very
different in effect, for when the
ordinary period is allowed, the
only days computed are those on
which he knows of his institution
and is in a position to decide,
but when a determinate period
is allowed, notwithstanding the
heir's want of knowledge of his
institution, the days begin to be
counted continuously ; and so not-
withstanding his inability from
any cause to declare, or any con-
ii. §§ 152-173.] DE HEREDVM QVALITATE 213
qui sub condi clone heres iwsti- dition annexed to his institution,
tutus est, tempus numeratur ; nevertheless the days begin to be
unde melius et aptius est uul- reckoned. Accordingly, it is better
gari cretione uti. and more convenient to employ
the ordinary mode of limitation.
§ 173. Continua haec cretio § 173. The determinate period
uocatur, quia continui dies is called continuous, because the
numerantur. sed quia [tamen] days are reckoned continuously,
dura est haec cretio, altera in On account of the harshness of
usu habetur ; unde etiam uul- this condition the other is com-
garis dicta est. monlv employed, and hence is
called ordinary.
§ 152. The rules of institution and disinheritance were formal
restrictions on the unlimited power of testamentary disposition, which
was conferred by the terms of the Twelve Tables ; § 102, comm. The
general tendency and purpose of these restrictions are to protect
children against the caprice of parents, and to be fully compre-
hended they should be viewed in connexion with the rules respecting
testamentum inofficiosum, which were not simply formal but real
restrictions of- testamentary freedom. These limitations of testa-
mentary power may be considered as consequences of the Eoman
conception of family duty. An English testator has unlimited
power to dispose of his property, and natural feeling is supposed
to be a sufficient guaranty that none of his children will be left
without suitable provision. Of Koman testators Justinian says :
Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel
exheredant vel omittunt. The grounds on account of which parents
may disinherit children, and children parents, are stated by Justinian
in his 115th Nov., where the law on the subject of disinherison is
consolidated and amended. They had to be mentioned in the will,
and it was open to the disinherited person to show that they were
unfounded. It is to be noticed that foreign systems of law, following
the Koman example, generally restrict the father's power of disin-
herison. Cf . Sohm, § 1 1 3. The principal impediments to or restric-
tions on testamentary freedom in the history of Eoman law may be
distinguished as follows : —
(1) We have seen, § 123, that a suus heres must either be instituted
or disinherited, a rule which the praetor extended to an emancipated
child, § 135. This secured him against being simply forgotten.
(2) If a child was disinherited without a cause, or received less than
one fourth, either as heir or legatee, of what his share would have been
by intestate descent (portio legitima), he could by impeaching the will
as immoral or unnatural (querela inofficiosi testamenti) have it set
aside on the fictitious presumption of the testator's insanity. The
presumption, at least, was so far fictitious that it was not allowed to
214 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
l)e rebutted by any other proof of his sanity except proof of the
adequacy of the motives for which the child was disinherited. The
querela inofficiosi was a form of petitio hereditatis, that is, a real
action, and fell under the jurisdiction of the centumviral court, 4 § 31.
Cf. Pliny, Ep. 5, 1 ; 6, 33. The amount of the share which must be
left to a child to save a will from avoidance for inofficiositas bears
some analogy to a requirement of the lex Falcidia, for it is identical
with the amount which that law secures to the child or any one else
when instituted heir as against the claims of legatees. The querela
inofficiosi could not only be brought by a child but also by certain
other near relatives, namely, parents, and by brothers and sisters,
but by the last only if a turpis persona was instituted. Children
and other near relations, even though emancipated, might be entitled
to this remedy. See Inst. 2, 18 ; Dig. 5. 2 ; Cod. 3, 28.
(3) Although a child (or any one else) were instituted heir, yet the
institution might be made illusory by the exhaustion of the whole
inheritance in legacies, leaving nothing to the heir but the burden of
administration. To meet this, the lex Falcidia provided that when
more than three fourths of an inheritance is absorbed in legacies, all
the legacies should abate proportionably so as to leave the heir a clear
fourth of the portion in which he was instituted (quarta Falcidia), § 227.
(4) The senatus consultum Pegasianum provided in the same way
against the inheritance being similarly exhausted by fideicommissa,
§254.
We may add that an impubes adopted by adrogation, if disinherited
or without cause emancipated, was entitled to one fourth of the inheri-
tance of his adoptive father (quarta Antonini), 1 § 102 ; Inst. 1, 11, 3.
§ 154. Primo aut secundo vel etiam ulteriore gradu, for an account
of substitutio see § 174, &c.
§ 155. Velut si Latinus, cf. § 195 and 3 § 58 ; and for an explanation
of the idiom see note to this passage in Muirhead's Gaius.
§ 157. Communism or co-ownership appears to be an older insti-
tution than divided or individual ownership. Even after the rights
of the paterfamilias had been enormously developed at the expense
of the rest of the household, as may have been the case in prehistoric
times, a vestige of the times when property vested rather in the
family than in the chief was perhaps preserved in the rules re-
specting the suus heres. Suus heres appears equivalent to sibi heres,
and implies that he who now enters on proprietary rights in the
character of paterfamilias had already possessed proprietary rights
over the same subject-matter in the character of filiusfamilias.
Less barbarous than self-successor (the term chosen to represent
suus heres as expressing sibi heres) but too long for perpetual use,
would have been the circumlocution, immediate lineal successor.
ii. §§152-173.] DE HEREDVM QVALITATE 215
Suus heres is a lineal descendant as opposed to the legitimus heres
or nearest agnate, who is a collateral relation, on whom the inheritance
devolves by the lex duodecim Tabularum in case there are no sui :
and he is an immediate heir as opposed to an eventual heir. For
instance, a grandson by an unemancipated son is in the grandfather's
power, and may eventually be his heir, but is not his suus heres
during the life of the son.
§§ 158-162. After acquiring an inheritance the heir became
personally liable to the testator's creditors for the full amount of the
testator's debts. But to relieve sui et necessarii heredes from being
thus compulsorily burdened, the beneficium abstinendi was given
them, § 158. The praetor could not, indeed, unmake, any more than
he could make, a heres, but by his control over procedure he could
put a person who had a civil title in the same position as if he had
none, while, on the other hand, he regarded persons, having no civil
title to the inheritance, as if they were heredes.
Adquisitio hereditatis by an external or voluntary heres may
probably have required at first in all cases a formal act (cretio) ; but
acting the part of heres (pro herede gerere), however informally, came
to be recognized as equivalent in legal effect to a formal declaration,
unless an institution was expressly made ' cum cretione.' The object
of instituting an heir ' cum cretione ' was to oblige him to accept or
abandon the inheritance within a prescribed term. For otherwise
the law allowed him to postpone his decision indefinitely, § 167.
It was to get rid of the inconvenience caused by leaving the
inheritance open for a long period, that the praetor at the request of
creditors of the estate fixed a period, generally a hundred days
(tern pus deliberandi), after which he authorized the sale of the pro-
perty, § 167. When it became customary for the praetor to prescribe
this time for deliberation, the formularies of cretio had no intelligible
policy and were regarded as irksome. After being dispensed with
in certain cases by other emperors, they were totally abrogated by
Arcadius and Theodosius, A.D. 407. Cod. 6, 30, 17 Cretionum
scrupulosam sollennitatem hac lege penitus amputari decernimus.
'Solemn declaration with its embarrassing formalities is hereby
decreed to be absolutely abolished.' (For allusions to cretio by Cicero
see Koby, Roman Law, 1, p. 396 and App. Bk. III.) For the
repudiation of an inheritance by a voluntary heir no solemn form
was at any time in use, and perhaps such repudiation was not legally
recognized in early law, though it was possible for the heres to assign
his right by in jure cessio. Thus an inheritance could not be lost
any more than it could be acquired by a mere expression of intention,
and it has been suggested that the abeyance of inheritances on this
account was a cause which gave rise to bonorum possessio. In the
216 SVCCESSIO PER VNIVERSITATEM [n. §§ 152-173.
time of Gaius, however, a heres could on delatio reject an inheritance
by any informal act expressive of his intention, and the acceptance
or rejection of an inheritance once made was irrevocable. § 169.
To afford an escape from the danger of accepting inheritances more
onerous than lucrative Justinian introduced the beneficium Inventarii,
or privilege of making an inventory, reducing the liability of an heir
who made the required inventory to the extent of the assets that came
to his hands. The inventory must be commenced within thirty days
from notice of the inheritance and completed in sixty other days. It
must be executed in the presence of a notary (tabellarius) and the
persons interested or three witnesses, Inst. 2, 19, 6 ; Cod. 6, 30, 22.
By English law the executor in every case is bound to make an
inventory, and in no case is he answerable to the testator's creditors
beyond the assets that come to his hands, unless for a sufficient
consideration he make his own estate chargeable by a written
engagement, as provided by the Statute of Frauds.
§§ 164-173. When a right is extinguished by inactivity prolonged
for a certain period, as in the case of a heres after delatio who has
omitted to make cretio within the time prescribed, the period has two
modes of measurement : either every day is counted, and then the
period is called tempus continuum } or only available days, days on
which activity is possible, are counted, and then the period is called
tempus utile. When a general rule prescribes a term, not greater
than a year, within which certain steps must be taken before a court
or judicial authority, on pain of forfeiting certain rights, such a term
must be measured as tempus utile. Such are the rules requiring
certain suits to be instituted within a year from their nativity, that
is, limiting a year for their period of prescription ; and the rule
requiring the demand of the possession of a heritage (agnitio bonorum
possessionis), whether testate or intestate, to be made, if the claimant
is an ascendant or descendant, within a year 5 if he is a stranger,
within a hundred days. The demand was made in writing, addressed
to a competent magistrate, and was followed by an immediate grant de
piano in the form of a simple subscriptio, Do bonorum possessionem.
Kuntze, 856. When the step required is rendered impossible, not by
a permanent obstacle, such as infancy, lunacy, prodigality, or juristic
personality, but by some transitory circumstance, the days on which
the action is hindered are excluded from the computation of the term.
Such hindrance f i) may relate to the person entitled, and then will
be his captivity, or his absence on public service, or his detention by
weather or illness, coupled with inability to appoint a procurator :
(2) Or, in the case of the limitation of actions, it may relate to the
person of the defendant : if, for instance, he is unknown, or concealed,
or absent and undefended :
ii. §§ 152-173.] TEMPVS VTILE 217
(3) Or it may consist in the absence of the praetor from the court.
Such absence might be accidental, or it might arise from the regular
intermission of the dies juridici, or days on which the praetor per-
formed his judicial functions, § 279, comm. As in the time of Marcus
Aurelius such days only amounted to 230 in a year (Suetonius,
Octavianus, 32), this cause alone would make annus utilis equivalent
to about 1^ ordinary years. The intermission of dies juridici was doubt-
less the principal cause of a claimant's inability to perform an act in
court on certain days ; but in Eoman law, as in modern times it was ad-
ministered in Germany,; when much of the procedure in an action had
come to consist in delivery of writings at the office of a court, irrespec-
tively of its session days and vacations, this cause lost its importance.
Knowledge (scientia) of the fact that he is entitled is not neces-
sarily requisite on the part of the person entitled : in other words,
his ignorance is not always sufficient to exclude a day from the
number of dies utiles. The prescription of an action, when it is
accomplished in annus utilis, begins to run from its nativity (actio
nata), irrespectively of the plaintiff's knowledge of his right to sue.
Ignorance of a right of action is generally the effect of Negligence,
and therefore undeserving of relief, arid might be protracted for
an indefinite period. On the contrary, ignorance is sometimes
a condition that delays the commencement of tempus continuum :
for instance, the 50 dies continui allowed to a person for stating
the grounds on which hfe was entitled to be excused from accepting
a guardianship only began to run when he had notice of his nomina-
tion, Inst. 1, 25) 16: which shows that scientia and ignorantia have
no necessary relation to the distinction of dies utiles and dies continui.
In the demand (agnitio) of bonorum possessio, however, by the
claimant of a testate or intestate succession, the edict expressly made
the scientia as well as the potestas of the claimant a condition of dies
utilis, Dig. 38^ 15, 2. Indeed the aditio of an inheritance was not
possible unless made with a knowledge of the fact of the delatio
and of its nature, whether testacj'- or intestacy. Moreover the igno-
rance of his rights could not be ascribed to the negligence of the
person entitled, nor was it likely to be indefinitely protracted, as it
would be the interest of the person next entitled to give him notice
of the delation. Knowledge will generally only affect the beginning
of a term, and the person who is once made aware of the delation of
an inheritance will usually continue aware : but it is possible that
a period of error should supervene ; for instance, that, after an
agnate has notice that he is entitled by intestacy and after his term
for acceptance has commenced to run, a forged will should be produced
and obtain credit : in which case the dies utiles would not continue to
run until the forgery of the will was ascertained. Savigny, § 189.
218 SVCCESSIO PER VNIVERSITATEM [n.§§ 174-184.
The testamentary clause allowing a term for cretio vulgaris in
contrast to cretio continua, like the edict relating to bonorum
possessio, made scientia as well as potestas a condition of tempus
utile.
As we have seen no time was prescribed by law for the aditio of
the civil inheritance, § 167 : for the acquisition (agnitio) of the prae-
torian succession we have seen that for ascendants and descendants
a year, for others a hundred days was prescribed, Inst. 3, 9, 9.
Agnitio and Repudiatio could be made by a procurator or agent,
Dig. 37, 1, 3, 7 : not so Aditio, Dig. 29, 2, 90, and still less Cretio.
§ 174. Sometimes two or more
degrees of heirs are instituted, as
follows : ' Lucius Titius, be thou
my heir, and declare solemnly
within a hundred days after you
know and are able : or, in default
of so declaring, be disinherited.
Thereupon, be thou, Mevius, my
heir, and solemnly declare within
a hundred da}7s,' &c. ; and in this
way we can make as many sub-
stitutions as we like.
§ 174. [DE
B-vs.] /nterdum duos pluresue
gradus heredum facirnus, hoc
Hiodo L. TITIVS HEEES ESTO CEE-
NITOQVE IN DIEBVS
PEOXIMIS QVIBVS SCIES POTEEIS-
QVE. QVODNI ITA CREVEEIS,
EXHEEES ESTO. TVM MEVIVS
HEEES ESTO CEENITOQVE IN
DIEBVS CENTVM et reliqua. et
deinceps in quantum uelimus
substituere possumus.
Inst. 2, 15 pr.
§ 175. Et licet nobis uel
unum in itnius locum substi-
tuere pluresue, et contra in
plurium locum uel unum uel
plures substituere. Inst. 2, 15, 1.
§ 176. Primo itaque gradu
scriptus heres hereditatem cer-
nendo fit heres et substitutus
excluditur ; non cernendo sum-
mouetur, etiamsi pro herede
gerat, et in locum eius substi-
tutus succedit. et deinceps si
plures gradus sint, in singulis
simili ratione idem contingit.
§ 177. Sed si cretio sine ex-
heredatione sit data, id est in
haec uerba si NON CREFJSEIS
TVM P. MEVIVS HEEES ESTO,
illud diuersum inuenitur, quod
si prior omissa cretione pro
herede gerat, substitutum in
partem admittit et fiunt ambo
aequis partibus heredes. quodsi
§ 175. We may substitute in
place of one either one or several,
and, conversely, in the place of
several we may substitute either
several or one.
§ 176. Accordingly, if the per-
son instituted in the first degree
accepts the inheritance, he is heir,
and the substitutes are excluded :
if he fail to declare with due for-
mality, he is barred in spite of
acts of heirship, and his place is
taken by the substitute ; and if
there are several degrees, in every
one a similar result occurs.
§ 177. If the formula prescrib-
ing a term of deliberation contains
no clauseof disherison, but merely
consists of these words: 'If thou
fail to declare, be Publius Mevius
my heir ' [cretio imperfecta], the
result is herein different, that, if
the person first instituted, though
he omit the solemn declaration,
ii. §§ 174-184.] DE SVBSTITVTIONIBVS
219
neque cernat neque pro herede
gerat, turn sane in uniuersum
summouetur, et substitutus in
totam hereditatem succedit.
6 178. Sed Sabino quidem
* i •
placuit, quamdiu cernere et eo
modo heres fieri possit prior,
etiamsi pro herede gesserit, non
tamen admitti substitutum ;
cum uero cretio finita sit, turn
pro herede gerente admitti sub-
stitutum. aliis uero placuit
etiam superante cretione posse
eum pro herede gerendo in
partem substitutum admittere
et amplius ad cretionem reuerti
non posse.
§ 179. Liberis nostris inpu-
beribus quos in potestate habe-
mus non solum ita ut supra
diximus substituere possumus,
id est ut si heredes non ex-
titerint, alius nobis heres sit ;
sed eo amplius ut, etiamsi
heredes nobis extiterint et ad-
huc inpuberes mortui fuerint,
sit iis aliquis heres ; uelut hoc
modo TITIVS FILIVS MEVS MIHI
HERBS ESTO. 81 FILIVS MEVS
MIHI (HERES NON ERIT SIVE
HERES) EEIT ET PRIVS MORIATVR
QVA.M IN SVAM TVTELAM VENE-
RIT, TVNC SE1VS HERES ESTO.
Inst. 2, 16 pr.
§ 180. Quo casu siquidem
non extiterit heres filius, sub-
stitutus patri fit heres ; si uero
heres extiterit filius et ante
pubertatem decesserit, ipsi filio
fit heres substitutus. quam
ob rem duo quodammodo sunt
act as heir, the substitute is only
admitted to a portion, and both
take a moiety : if he neither for-
mally declare nor act as heir, he
is entirely excluded, and the sub-
stitute succeeds to the whole in-
heritance.
§ 178. It was the opinion of
Sabinus that, as long as a term
for formally declaring and thereby
becoming heir subsists, a person
in a higher grade does not let in
the substitute, even if he inform-
ally act as heir, and that only after
the expiration of the term is the
substitute admitted instead of the
person instituted, who has been
acting as heir. But the other
school held that, even pending the
allotted term, informal acts of
heirship let in the substitute and
bar the prior heir from reverting
to his right of formal declara-
tion.
§ 179. To children below the
age of puberty in the power of
the testator, not only can such a
substitute as we have described
be appointed, that is, one who
shall take the inheritance on their
failure to inherit, but also one
who, if after inheriting they die
before attaining the age of puberty,
shall be their heir ; which may
be done in the following terms :
' Be my son Titius my heir, and
if my son does not become my
heir, or after becoming my heir
die before becoming his own
guardian, [that is before attaining
the age of puberty], then be Seius
the heir.'
§ 1 80. In which case, if the son
fail to inherit, the substitute is
the heir of the testator, but if the
son die after inheriting and with-
out attaining the age of puberty,
the substitute is heir to the son.
Thus there are two wills, so to
220 SVCCESSIO PER VNIVERSITATEM [n. §§ 174-184.
testamenta, aliud patris, aliud
tilii, tamquam si ipse filius sibi
heredem instituisset ; aut certe
unum est testamentum duarum
hereditatum. Inst. 1. c.
§ 181. Ceterum ne post obi-
tumparentispericuloinsidiarum
subiectus uideatur pupillus, in
usu est uulgarem quidem sub-
stitutionem palam facere, id est
eo loco quo pupillum heredem
instituimus ; (nam) uulgaris
substitutio ita uocat ad heredi*
tatem Bubstitutum, si onlnino
pupillus heres non extiterit ;
quod accidit cum uiuo parente
moritur, quo casu nullum sub-
stituti maleficium suspicari pos-
sumus, cum scilicet uiuo testa-
tore omnia quae in testamento
scripta sint ignorentur. illam
autemsubstitutionem per quam,
etiamsi heres extiterit pupillus
et intra pubertatem decesserit,
substitutum uocamus.'separatim
in inferioribus tabiilis scribi-
mus, easque tabulas proprio
lino propriaque cera consigna-
mus, et in prioribus tabulis
cauemus, ne inferiores tabulae
uiuo filio et adhuc inpubere
aperiantur. sed longe £utius
est utrumque genus substitu-
tionis [separatim] in inferioribus
tabulis consignari, quod si ita
[consignatae uel] separatae
fuerint substitutiones, ut dixi-
mus, ex priore potest intellegi
in altera [alter] quoque idem
esse substitutus. Inst. 2, 16, 3.
§ 182. Non solum autem
heredibus institutis inpuberibus
liberis ita substituere possumus,
ut si ante pubertatem mortui
fuerint, sit is heres quern nos
uoluerimus, sed etiam exhere-
datis. itaque eo casu si quid
pupillo ex hereditatibus lega-
speak, the father's and the son's,
just as if the son himself had
instituted an heir ; or at any rate
there is one will dealing with
two inheritances.
§ 181. However, to save the
ward from the danger of foul play
after the death of the parent, it
is common for the ordinary sub-
stitution to be made openly, that
is, in the clause wherein the ward
is instituted, for as the ordinary
substitution only calls a man to
the succession in case of the ward
altogether failing to inherit, and
this can only occur by his death
in the lifetime of his parent, the
substitute in this case is open to
no suspicion of crime, because
while the testator is alive the
contents of the will are a secret.
But the substitution, wherein a
man is named heir after the suc-
cession and death of the ward
before reaching the age of puberty,
is written separately on later
tablets, tied with their own cords
and sealed with their own wax,
and it is prohibited in the prior
tablets that the will should be
opened in the lifetime of the
son before he attains the age of
puberty. Indeed it is far safer
that both kinds of substitution
should be sealed up separately in
two subsequent tablets, for if the
ordinary substitution is contained
in the first tablets it is easy to
conjecture that the same substi-
tute is appointed in the second.
§ 182. Not only when we ap-
point children under the age of
puberty our heirs can we make
such a substitution that if they
die before puberty the substitute
is their heir, but we can do it
even when we disinherit them,
so that in case the ward should
ii. §§ 174-184.] DE PVPILLARI SVBSTITVTIONE 221
tisue aut donationibus propin- acquire anything either by heir-
quorum adquisitum fuerit, id ship, legacies, or by gifts of his
omne ad substitutum pertinet. relatives, all will belong to the
Inst. 2, 16, 4. substitute.
§ 183. Quaecumque diximus § 183. What has been said of
de substitutione inpuberum substitution to children below the
liberorum uel heredum institu- age of puberty, whether appointed
torumuelexheredatorum, eadem heirs or disinherited, is true of
etiam de postumis intellegemus. substitution to afterborn children.
Inst. 1. c.
§ 184. Extraneo oiero heredi § 184. To a stranger instituted
institute ita substituere non heir we cannot appoint a sub-
possumus, ut si heres exfciterit stitute who, if the stranger in-
et intra aliquod tempus deces- herit and die within a certain
sent, alius ei heres sit ; sed hoc time, is .to be his heir ; but we
solum nobis permissum est, ut have onlY power to bind him
eum per fideicommissum obli- bY a trust to convey the inheri-
gemus, ut hereditatem nostram ^ance to another, in part or in
totam uel (pro) parte restituat ; wh°le> a, ^ght which shall be
quod ius quale sit, sub ' loco S§^?1 m ^^ P
trademus. Inst. 2, 16, 9.
§ 177. It will be observed that this rule deviates from the principle
laid down in § 166. A constitution of Marcus Aurelius changing
the law further in the same direction, and mentioned by TJlpian
(Sed postea divus Marcus constituit, ut et pro herede gerendo ex
asse fiat heres, 22, 34. 'Subsequently Marcus Aurelius enacted that
acts of heirship would make him [the person instituted, in the case
of cretio imperfecta] exclusive heir '), was clearly not enacted when
this paragraph wa.s written by Gaius, and furnishes an indication
of the date at which this book of his Institutions was published.
Marcus Aurelius was sole emperor A. D. 169-176.
§ 179. Cicero frequently mentions a great case in which the
question arose whether a vulgaris substitutio may be implied from
a pupillaris substitutio. The centumviral court decided that the
intention rather than the words of the testator should prevail, and
that the heir appointed to succeed the son in case the son died
before puberty should be deemed appointed to succeed the testator
in case no son was born : Malim mini L. Crassi unam pro M'. Curio
dictionem quam castellanos triumphos duos, Brutus 73, 'I would
rather have made the single speech of Lucius Crassus for Manius
Curius than have had two triumphs for the capture of fortresses.'
The other passages are worth referring to De Orat. 1, 39, 57 ; 2, 6, 32 ;
Brutus, 39, 52; Pro Caecina, 18, 53; Topica, 10, 44. Marcus
Aurelius enacted that in every case pupillaris substitutio should be
implied in vulgaris substitute and vice versa, unless the contrary
intention was expressed, Dig. 28, 6, 4.
222 SVCCESSIO PER VNIVERSITATEM [n. §§ 185-190.
§ 184. That is to say, we cannot by the ordinary rules of law limit
an inheritance so as to make it subject to a resolutive condition or
determinable at a future time. All we can do is to direct the heir
by way of trust (fidei commissum) to reconvey the inheritance to
some one at a future time or on the happening of some future event.
Hereditas itself, strictly speaking, is indelible (semel heres semper
heres). Regula est juris civilis qua constitutum est hereditatem
adimi non posse, Dig. 28, 2, 13, 1. Of. §§ 246-257, comm.
DE HEREDIBVS INSTITVENDIS.
§ 185. Sicut autem liberi
homines, ita et serui, tarn nostri
quam alieni, heredes scribi pos-
sunt.
§ 186. Sed noster seruus
simul et liber et heres esse
iuberi debet, id est hoc modo
STICHVS SEKVVS MEVS LIBER
HERESQVE ESTO, uel HERES
LIBERQVE ESTO.
§ 187. Nam si sine libertate
heres institutue sit, etiamsi
postea manumissus fuerit a
domino, heres esse non potest,
quia institutio in persona eius
non const^it ; ideoque licet
alienatus sit, non potest iussu
domini noui cernere heredi-
tatem.
§ 188. Cum libertate uero
heres institutus siquidem in
eaofem causa durauerit, fit ex
testamento li&er et inde neces-
sarius heres. si uero ab ipso
testatore manumissus fuerit, suo
arbitrio hereditatem adire po-
test. quodsi alienatus sit, iussu
noui doming adire hereditatem
debet, qua ratione per eum
dominus fit heres ; nam ipse
neque heres neque liber esse
potest. Inst. 2, 14, 1.
§ 189. Alienus quoque seruus
heres institutus si in eadem
causa durauerit, iussu domini
hereditatem adire debet; si uero
alienatus ab eo fuerit aut uiuo
testatore aut post mortem eius,
§ 185. Not only freemen but
slaves, whether belonging to the
testator or to another person, may
be instituted heirs.
§ 186. A slave belonging to the
testator must be simultaneously
instituted and enfranchised in the
following manner: 'Stichus, my
slave, be free and be my heir ;* or,
' Be my heir and be free.'
§ 1 87. If he is not enfranchised
at the same time that he is insti-
tuted, no subsequent manumis-
sion by his owner enables him to
take the succession, because the
institution is originally void, and
even if aliened he cannot formally
declare his acceptance by the order
of the new master.
§ 188. When a slave is simul-
taneously instituted and enfran-
chised, if he continue in the same
condition, the will converts him
into a freeman and a necessary
heir : if the testator himself manu-
mits him in his lifetime, he is able
to use his own discretion about
acceptance : if he is aliened he
must have the order of his new
master to accept, and then his
master through him becomes
heir, the alienated slave himself
becoming neither heir nor free.
§ 189. When another person's
slave is instituted heir, if he con-
tinue in the same position, he
must have the order of his master
to accept the succession; if aliened
by him in the lifetime of the tes^
ii. §§185-190.] DE HEREDIBVS INSTITVENDIS 223
antequam cernat, debet iussu tator, or after his death before
noui domini cernere ; si uero formal acceptance, he must have
manumissus est, suo arbitrio the order of the new master to be
adire hereditatem potestf. able to accept : if manumitted be-
Inst. 1. C. ^ ore acceptance, he is able to follow
his own judgement as to accepting.
§ 190. Siautemseruusaliemis § 190. When a slave of another
heres institutus est uulgari ere- person is instituted heir with the
tione data, ita intellegitui dies ordinary term of cretio, the term
cretionis cedere, si ipse seruus only begins to run from the time
scierit se heredem institfutum when the slave has notice of his
esse, nee ullum inpedimentum appointment, and is not prevented
sit, quominus certiorem domi- in any waY from informing the
num faceret, ut illius iussu master SP *hat *e mav at his
cernere possit. order make formal accePtan<*.
§ 187. This rule was abolished by Justinian, who enacted that
the enfranchisement of the testator's slave, though unexpressed,
should always be implied in his institution as heir. Cod. 6, 27, 5 ;
Inst. 1, 6, 2.
§ 188. Justinian explains why the slave lost his liberty : De-
stitisse enim a libertatis datione videtur dominus qui eum alienavit,
Inst. 2, 14, 1. 'A revocation of the bequest of liberty is inferred
from the fact of his alienation.' If we ask why the implied inten-
tion that suffices to revoke the enfranchisement does not suffice to
revoke the institution, the answer is, that a bequest can be revoked
by any act clearly implying an intention to revoke, whereas an insti-
tution requires a more solemn revocation, by execution of a later
will, or some other means, §§ 147—151, comm.
§ 189. What was the motive of instituting as heir the slave of
another person ? Such a disposition could not be dictated by kindness
to the slave, for he would probably gain nothing by his institution ;
but was a device adopted for two purposes, (i) for facilitating the
conversion of a succession into money, and (2) for securing an institu-
tion against failure.
(i) By such a disposition the testator gave the proprietor of the
slave, whose benefit was intended, the option of either becoming
actual heir, or of doing, what he could not otherwise readily do, i. e.
of receiving the net value, or a large portion of the net value, of
the succession, without incurring the expense of the annexed sacred
rites (sacra) and the burden of administration, by practically selling
the succession for the highest price he could get to any one who was
willing to incur these expenses and troubles as a matter of specula-
tion. To effect this, he had only to sell the slave at a price enhanced
by his character of institutus. The slave thereupon, making aditio
of the inheritance in obedience to an order of the purchaser, vested
224 SVCCESSIO PER VNIVERSITATEM [n. §§ 185-190.
the inheritance in the purchaser. If the former proprietor was
reluctant to part with his slave, he had only to bargain for his
reconveyance by a fiducia or condition annexed to the sale or manci-
patio. Reddendus (or in the time of Gaius it might have been a case
of mancipatio cum fiducia) §st servus ea conditione ut, cum jussu
ejus adierit, rursum retradatur. By this branch of speculation the
instituted slave might pass through many hands before the succession
vested, Dig. 37, 11, 2, 9.
(2) A second object gained by the institution of another person's
slave was the transmission of an inheritance to the heirs of such
person, If the heir instituted died in the lifetime of the testator,
the institution failed, and the failure could not be prevented by the
substitution (secondary institution) of the heir of the person instituted,
for such heir would be a persona incerta, § 242. The difficulty was
met by instituting a slave, who on the death of his master, the
virtual heir, would become the slave of the master's heir, and acquire
for him the succession of the testator. TQ guard against the con-
tingency of the death of the slave in the lifetime of the testator,
several slaves might be instituted by way of substitution. Ihering,
§ 56. An inheritance delated to a slave is said to be ambulatory :
Ambulat cum dominio bonorum possessio, 1. c. (In a similar way
we might say : ambulat cum ca/pite noxa, 4 § 77.)
§ 190, Si ipse servus scierit se heredem institutum. The know-
ledge of the slave was material ;for the purpose of acquisition, since
the slave is regarded as if he were heir, though acquiring not for
himself but for his master. Cf, Inst. 3, 17, 1 and 2.
A slave instituted heir might be the property of several masters,
who when he entered upon the inheritance would become co-heredes
of it according to their respective shares in him. Inst. 2, 14, 3. In
the same title of the Institutes, Justinian mentions that an heir
might either be appointed to take the whole of an inheritance or to
share it with other co-heirs in any proportions. We may briefly
state the technical terms and rules of interpretation by which
different shares were allotted. An inheritance was commonly re-
garded as a pound (as) consisting of twelve ounces (unciae). The
different fractions were thus denominated : uncia, a twelfth of an as,
or an ounce ; sextans, a sixth of an as, or two ounces ; quadrans,
a fourth of an as, or three ounces ; triens, a third of an as, or four
ounces ; quincunx, five ounces ; semis, half an as, or six ounces ;
septunx, seven ounces ; bes (bis triens), two thirds of an as, or eight
ounces ; dodrans (deme quadrantem), an as minus a fourth, or nine
ounces ; dextans (deme sextantem), an as minus a sixth, or ten
ounces ; deunx (deme unciam), an as minus an ounce, or eleven
ounces ; as, twelve ounces.
II. §§ 185-190.] DE HEREDIBVS INSTITVENDIS 225
An heir instituted in twelve ounces (ex asse) took the whole : but
it was a rule that no one could be partly testate and partly intestate,
and therefore if an heir were instituted in a part (ex parte) and
no other co-heir instituted, that part represented a pound, and the
heir took the whole. So if the shares allotted to several co-heirs
amounted to more than twelve ounces, then, if no other heir was
appointed with an unexpressed share, the as was deemed to consist
of more than twelve ounces, and each co-heir took a ratable part of
the inheritance. If one heir were instituted in a part, say ex besse,
and a co-heir were instituted for whom no part was expressed, then
the co-heir would take the residue of the as, that is, would be deemed
to be instituted ex triente. But if the parts expressed for certain
heirs exhausted or exceeded the as and another heir or heirs were
named without express shares, then the whole inheritance was sup-
posed to consist of two asses (dupondius) and the expressed shares
were reduced to so many ounces out of twenty-four, the heir or heirs
with unexpressed parts taking the residue. Similarly, if necessary,
the inheritance was supposed to consist of thirty-six ounces.
If the institution of one co-heir lapsed, the shares of the remaining
co-heirs were ratably augmented (accretio), just as, if originally less
than twelve ounces had been distributed, the expressed shares of
each would be ratably augmented so as to exhaust the inheritance.
This rule, however, was modified by the leges caducariae, passed
chiefly to discourage celibacy, namely the lex Julia de maritandis
ordinibus, A. D. 4, and the lex Papia Poppaea, on marriage and suc-
cession, A. D. 9, in which the provisions of the lex Julia were in-
corporated, for which reason both laws are sometimes referred to as
lex Julia et Papia.
Caducum is a devise or bequest, valid at Civil law, but vacated by
some particular law or statute, such as a legacy to a celibate or Latinus
Junianus, in case the former fails within a hundred days to comply
with the law [the Lex Papia], or the latter to acquire full citizen-
ship ; or in case of the institution of a co-heir, or bequest to a legatee
who dies or becomes an alien before the will is opened, Ulpian, 17, 1.
[By the Civil law, unconditional devises and bequests vested (dies
cedit) at the death of the testator (though still defeasible by the failure
of the will) ; by the lex Papia Poppaea not before the opening of the
will, thus making the chance of a lapse greater, but Justinian re-estab-
lished the rule of Civil law.] Cf. Roby, Eoman Law, Bk. Ill, ch. x, B.
The leges caducariae, which fixed the conditions of caducity, were
aimed against the coelebs and the orbus. Cf. §§ 1 1 1, 144, 286. Coelebs
is defined to be an unmarried man between the age of twenty and sixty,
or an unmarried woman between the age of twenty and fifty. Orbus
is a man between fifty and sixty without children, natural or adoptive.
226 DE LEGATIS [n. §§ 191-223.
An unmarried person could take nothing as heres extraneus
or legatee ; an orbus could only take half of the devise or bequest
intended for him. The inheritance or legacy thus lapsed was
allotted by the leges caducariae in the first place, in the case
of a legacy, to conjoint legatees of the same specific thing if the
legatees had children ; in the second place to children or parents of
the deceased who were instituted heirs in his will ; in the third place
to heirs and other legatees having children ; and in last remainder 
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